Safety Security and Accessible Justice - GSDRC

issuesSafetySecurity andAccessibleJusticePutting policy into practice

These guidelines were commissioned by DFID.Their preparation was supervised by David Wood,Geoff Bredemear and Annabel Gerry.The text was produced by Sheelagh Stewart (Human Rights Co-ordinator,DFID), Michael Anderson (British Institute of International and Comparative Law), Chris Gale (Consultant), andAdam Stapleton (Consultant). Professor Wilfried Schärf (University of Capetown) and Colin Roth (consultant)provided editorial oversight.For more detailed information on particular topics, the Governance Resource Centre (www.grc-dfid.org.uk) canprovide bibliographies and lists of websites.Further advice and information on safety, security and access to justice can be obtained from the GovernanceDepartment of the Department for International Development.Contact Roger Wilson: telephone 020 7023 0242; fax 020 7023 0074; e-mail: R-Wilson@dfid.gov.uk

Safety, security andaccessible justicePutting policy into practiceDepartment for International DevelopmentJuly 2002

Contents1 INTRODUCTION1.1 Objectives of the guidelines 121.2 The justice sector 121.3 Why do safety, security and accessible justice matter to poor people? 131.4 Why do safety, security and accessible justice matter for governance and development? 131.5 Why a new approach? 141.6 DFID’s contribution 142 DIAGNOSIS2.1 Taking a strategic approach to the sector 152.2 The sector assessment process 152.3 A strategy for sector reform 182.4 What help and information is available 193 COMMON IMPLEMENTATION ISSUES3.1 Introduction 203.2 The role of SSAJ in implementing Human Rights 203.3 Understanding user perspectives 203.4 Developing Partnerships 213.5 Tackling Constraints 214 SAFETY AND SECURITY4.1 Introduction 264.2 The case for an intervention. 264.3 Towards an effective strategy 274.4 Planning and appraising an intervention 304.5 Responding to Requests for Assistance 334.6 Monitoring and Evaluation 345 ACCESSIBLE JUSTICE5.1 Introduction 355.2 The case for intervention 355.3 Towards an effective strategy 365.4 Planning and appraising an intervention 395.5 Monitoring and Evaluation 446 THE PENAL SYSTEM6.1 Introduction 456.2 The case for intervention 456.3 Towards an effective strategy 466.4 Planning and appraising an intervention 496.7 Monitoring and Evaluation 50Safety, security and accessible justice 3

Appendix 1: “Justice and Poverty Reduction”, DFID Issues Paper, December 2000 51Appendix 2: Linkages in the system – examples from South Africa 62Appendix 3: Checklist for appraising police reform programmes 63Appendix 4: Checklist for appraising accessible justice 64Appendix 5: Checklist for appraising the penal system 664 Safety, security and accessible justice

List of AcronymsAPOSCEDAWCRCCSODFIDFIDAGDJLOSMASSAJNGOPCNPRSPRRRTRSASMRSSAJSWAPTORsUNCICPAssociate Professional Officers SchemeConvention on the Elimination of all forms of Discrimination Against WomenConvention on the rights of the ChildCivil Society OrganisationDepartment for International DevelopmentInternational Federation of Women Lawyers (Spanish acronym: Federación Internacional de Abogadas)Governance Department (Department for International Development)Justice/Law and Order SectorMalawi Safety Security and Access to JusticeNon-Government OrganisationProject Concept NotePoverty Reduction Strategy PaperRegional human Rights Resource TeamRepublic of South AfricaUnited Nations Standard Minimum Rules for the Treatment of PrisonersSafety, Security and Accessible JusticeSector-Wide ApproachTerms of ReferenceUN Centre for International Crime PreventionSafety, security and accessible justice 5

GlossaryAdministrative lawAdmissible evidenceAdvocateAlternative disputeresolutionAmicus curiaeAppellate CourtArbitrationArraignAttorneyAttorney GeneralBar AssociationBarristerBenchBurden of proofBurglaryCapital offenceThe branch of law dealing with the legal control of the executive and administrative actions anddecisions. See also Commercial Law, Criminal Law, Customary Law, Family Law and Land Law.Evidence which the judge rules should be taken into consideration when deciding a case. Sometypes of evidence are excluded by the judge eg because the manner in which they were obtainedwas unfair (including confessions unfairly obtained).Term used in some countries for somebody who is qualified to represent others in court. See also:Attorney, Barrister, Notary, Solicitor.Settlement of disputes by means other than litigation in court. Alternatives to formal courts includemediation, arbitration and small claims courts.Latin for “friend of the court,” a party who is not a litigant but who is allowed to submit legalarguments in the case due to a general interest or expertise in the issue. For example, anenvironmental NGO may be allowed to participate in planning or pollution litigation even thoughits own legal rights are not in dispute.(Also Court of Appeal). A court empowered to hear appeals: to reconsider the decision of a lowercourt.There may be several types of appellate courts organised in a hierarchy involving differentnamed courts eg Supreme Court.Settlement of disputes outside of the court using a neutral person or panel selected by the parties;does not have the enforcement power of a court.To bring a criminal defendant to appear before the court.Term used in some countries for somebody who is qualified to represent others in court. See also:Advocate, Barrister, Notary, Solicitor.Meaning varies between: (a) government’s chief law adviser; (b) head of Ministry of Justice; (c) headof prosecution service. Usually a political appointment.Term used in some countries for a professional organisation of barristers or similar. Often has selfregulatingdisciplinary powers over the profession.Term used in some countries for somebody who is qualified to represent others in court. See also:Advocate,Attorney, Notary, Solicitor.Collective term referring to the judges in a legal system.The requirement that the plaintiff (in a civil trial) or prosecution (in a criminal trial) show that allthe facts necessary to win a case are true.Theft of property from a building which the defendant has entered unlawfully (cf. theft).Most serious category of offence, for which death penalty may be applied.6 Safety, security and accessible justice

GlossaryCase-lawCause of actionChambersCircuitCivil lawCivil law systemClerk (of the court)Commercial lawCommon lawCommon law systemCommunity serviceConstitutionConstitutional courtCourt of first instanceCriminal lawCriminologyCustomCustomary lawDefendantLaw as established by the decisions of judges in previous cases.The legal and factual basis on which a plaintiff founds their case.Usually, the private office (ie not public courtroom) of a judge.A system used in some common law systems whereby centrally-based judges travel to regional courtsto hear local cases.Law concerning private rights; generic term for non-criminal law (NB: this term applies tocategory of law within a country, and is not the same as civil law system, which refers to entirenational legal system).Systems found in nearly all countries other than English speaking countries and mostCommonwealth countries. Distinguished from common law system by a wide range of substantive andprocedural differences.Tend to emphasise codes rather than common law.Official who handles the business of a court or a system of courts, maintains files of each case, andissues routine documents.The branch of law governing the rights, relations and conduct of persons and businesses engaged incommerce, merchandising, trade and sales.Law derived from judicial precedent rather than from statutes or codes.Systems found in English-speaking and most Commonwealth countries that tend to emphasisejudge-made law. Distinguished from Civil law system.A sentence applied by a judge to a defendant which orders the defendant to perform certainservices for the community eg working in a social welfare organisation such as a school, hospital orold people’s home, or on an environmental work placement. One alternative to imprisonment.Almost always a written document that outlines the political and legal structure of the state.Constitutions tend to have the status of a superior form of law that can override other types of law.May require special procedures to change them.Found more frequently in civil law systems, a special court with responsibility for deciding theconstitutionality of acts of other arms of the state, sometimes including compatibility of statutes.A court where a trial started; distinguished from appellate court.The branch of law governing criminal offences and punishments.The study of the socio-economic and institutional aspects of crime and criminal justice.(Also traditional law, informal law) Rules or patterns of practice enforced by community sanctionsrather than the state legal system; see also Customary law.Law based on custom, enforced by the state legal system.The party sued in a civil trial or prosecuted in a criminal trial.Safety, security and accessible justice 7

GlossaryDelegated legislationDepositionDisclosureDistrict CourtDiversionDue processFamily lawFundamental rightsHabeas corpusHigh CourtHuman RightsImmovable propertyIndictable offenceIndictmentInformal lawInjunction(Also secondary legislation) Legislation which comes into force under powers granted to theexecutive by the legislature in a statute, and therefore does not usually require a vote in thelegislature to take effect.The executive’s powers in this regard are limited by the terms of the ‘parent’statute and are sometimes conditional on certain legislative approval procedures.The taking and recording of testimony of a witness under oath.The process of revealing to one’s opponent in a case the documents in one’s possession which arerelevant to the case.Term used in many countries for a lower court; it may either be a court of first instance or anappellate court.Arranging for a matter to be dealt with in, usually, a less formal way, for example diverting a casefrom the courts to arbitration or mediation.A fundamental principle of fairness which the courts in many countries are charged with applying.Guards against prejudicial or unequal treatment.The branch of law governing marriage, divorce, inheritance, adoption, maintenance, and otherfamily matters; may be subject to special family courts.Often a chapter or section of a constitution that sets out protections for basic civil liberties andhuman rights.Latin for ‘produce the body’. A legal order that can be used to protect against illegal imprisonment,such as holding a person without charging them.Often an appellate court from decisions of the District Courts, although plaintiffs are obliged to startsome types of cases here (eg if over a certain financial value). In some countries (eg Australia) theHigh Court is the final court of appeal.A set of basic rights protected in international law that apply to all individuals regardless of gender,race, religion, ethnicity, and so on. In national constitutions, human rights are sometimes referred toas Fundamental Rights.(Also real property) All land, structures built on the land, anything growing on the land, and allrights over such property, including leases, rights of way, ownership etc. Distinguished from movableproperty/personal property.More serious category of offence eg murder, manslaughter, rape, kidnapping, grand theft, robbery,burglary.The process by which the prosecution sets out the specific crime with which a defendant ischarged.See Custom.An order made by a court directing somebody to do something or refrain from doing something.8 Safety, security and accessible justice

GlossaryInternational lawJudge/magistrateJudicial ReviewJury trialJuvenile courtLand law/property lawLaw SocietyLayLegal aidLegal professionLimitation periodLocus StandiMagistrateMovable propertyNeighbourhood watchNotaryThe law governing relations between countries (as distinct from the law within countries).The mostimportant source of international law is the treaty.In many common law systems, the distinction is based on qualifications/seniority. Judges aremore senior.In many civil law systems, there is a tradition of ‘investigating magistrates’ who have a more proactiverole in establishing the facts of a case (cf. the common law adversarial system where the judgehas little power of independent inquiry).1) Judicial review of administrative action: the process by which a judge exercises scrutiny over thelegality of an administrative decision or action by the executive branch of government; 2) Judicialreview of legislation: the process by which a court decides whether a particular statute is compatiblewith the Constitution (usually the Fundamental Rights).A system familiar to most common law systems but less common in civil law systems, whereby thejudge’s role is limited to establishing the law, whereas the facts (and therefore, ultimately guilt orinnocence of a defendant) are decided by a group of citizens. Used mainly in criminal cases.In some countries, a special court which deals with juvenile defendants charged with crimes.Thedefinition of juvenile varies but is usually for persons under 16 to 18 years of age.The branch of law governing transactions in and rights to land, including leases, ownership,mortgages, rights of way etc.Term used in some countries for a professional organisation of solicitors or similar. Often has selfregulatingdisciplinary powers over the profession.Not legally qualified.System providing free or subsidised legal services, sometimes including representation in court.Source of funding varies - can be state or private.Collective term for all professionals in a legal system who provide legal services. Constituent partsvary, but will include a selection of: Advocates,Attorneys, Barristers, Notaries, Solicitors.In most systems, there is a time limit within which a plaintiff must initiate a case, referred to asthe limitation period. Its rationale is to provide legal certainty, but it can also constitute a barrierto justice.Latin for ‘place of standing’. Someone is deemed to have locus standi before the court when theyhave satisfied the rules of standing, especially in judicial review (of administrative action) cases.See Judge.All movable assets (things, including animals) which are not immovable/real property, money orinvestments.Systematic local vigilance by householders to discourage crime, especially against property.A person authorized by the state to eg administer oaths (swearings to truth of a statement), certifylegal documents and take depositions. See also:Advocate,Attorney, Barrister, Solicitor.Safety, security and accessible justice 9

GlossaryParalegalParolePeople’s CourtPersonal propertyPlaintiffPro bono (publico)ProbationProperty lawPublic InterestLitigationReal propertyRecidivismRegistrarRegistryRemand prisonerRobberyRules of StandingSecondary legislationSettlementA non-lawyer given basic training in legal matters and available to give basic legal advice, oftenfor free.The period after a prisoner’s release from custody, during which he must observe certain conditions(in particular not commit any further offences) in order to remain free.A court whose power is regarded as vested in the people.See Movable property.Person who brings a case, alleging that the defendant has caused them loss or injury.Latin for ‘advancing (the public) good’.Work done by a lawyer on a charity basis - either at areduced fee or free of charge.Similar to parole, a sentence applied to a defendant which orders the defendant to observe certainconditions which are designed to address the reasons for the defendant’s criminal behaviour egattending counselling, reporting regularly to a probation officer. One alternative to imprisonment.See Land law.(Also social action litigation, strategic impact litigation, or class action litigation). A law suitrepresenting the interests of a group of individuals or the general public (or sometimes a singleindividual) rather than the narrow legal interests of a private party, for example, litigation over airpollution that affects the population of a whole city.The possibility of bringing such litigation oftendepends on rules of standing.See Immovable property.Repeat offending by an individual.Normally the head of the registry, sometimes a judge.The name in some court systems for the section of the court where cases are listed for hearing,processed, archived and prepared for appeals or to be published, usually staffed by administrative(non-judge) personnel.A defendant who has been ordered by the court to stay in custody pending trial.Theft of property by force (cf. theft).The rules governing whether a person can initiate a case. Of particular significance in judicial reviewand other administrative law cases, because the rules in some systems limit the category of individualswho can challenge executive actions or decisions.See Delegated legislation.The resolution of a legal dispute before the court gives its final judgment. Often, settlements areachieved by negotiation between the parties, or mediation or arbitration involving a third party.10 Safety, security and accessible justice

GlossaryShari’aSmall claims courtSolicitorSolicitor GeneralStatuteSubpoenaSuspended sentenceTheftTortTortfeasorTortiousTraditional lawTreatyTribunalVigilanteWrit(Also, Shariat). Islamic law, based in part on the Quran, relating mainly to family matters and certaincrimes. Applied to different extents and according to different interpretations in various Islamicstates and in some territories in decentralised systems (eg Nigeria, Indonesia).A tribunal in which claims for small amounts can be heard and decided quickly and cheaplywithout legal representation.Term for a legal professional who is normally limited to supplying legal services other thanappearing in court. See also:Advocate,Attorney, Barrister, Notary.Post found in some common law countries. Meaning varies, but usually junior to Attorney General.A written law passed by a legislative body.An order of the court for a witness to appear (usually at court) to testify and/or produce documents.A penalty applied by a judge to a defendant convicted of a crime which the judge provides will notbe enforced (ie is suspended) if the defendant meets certain conditions eg does not commit anyfurther offences for a given period. One alternative to imprisonment.Generic term for any crime whereby a person takes property belonging to another without theother’s consent.A breach of legal duty (other than under contract) leading to liability for damages.The person who commits a tort.The adjective describing behaviour which amounts to a tort.See Custom.An agreement between two states (bilateral treaty) or many states (multilateral treaty) setting outtheir mutual obligations in international law; in most common law systems the provisions of a treatycannot be directly enforced in national courts unless they have been included in a national statute.Any court, body or board which has judicial or quasi-judicial functions.Commonly refers to somebody who takes the law into their own hands. Can also refer to a memberof a vigilance committee or similar body (vigilance committee: a self-appointed body for themaintenance of order) which may enjoy some degree of official recognition (eg South Africa).Meaning varies and includes: (a) a written order of a judge requiring specific action by the person orentity to whom the writ is directed; (b) the document which must be served by a plaintiff on adefendant to initiate a case.Safety, security and accessible justice 11

1 IntroductionThese guidelinessuggest ways ofmaking justice systemswork better......but different casesneed different answers:we do not know themall and the guidelinesshould not be readas a manual.DFID’s objective is to help make justice systems work better, especially for poor people, inways which are appropriate to the local culture and within available resources.This note assumes an understanding of the concepts behind DFID’s Safety, Security andAccessible Justice (SSAJ) policy in Appendix 1.The Governance Resource Centre canprovide references to other sources which explain and develop these ideas.This Guidance Note is one component of the support available from GovernanceDepartment to those seeking to develop SSAJ initiatives in-country. Others include theSSAJ team in HQ, the Governance Resource Centre, and the Index of SSAJ Sourcesof Expertise.1.1 Objectives of the GuidelinesThese Guidelines have been written for governance advisors and programme managers inDFID. But others in DFID, and officials in other development agencies and in developingor transition countries, may also find them useful.The emphasis is on how to put SSAJ policy into practice. Our aim is to provide practicalguidance based on our experience so far on the issues which may arise at various stages:ideas to look for; and ways of dealing with common problems. It is not intended to becomprehensive, nor is it a manual.We do not pretend to know all the answers.There areno magic formulae, and arrangements that work well in one country may not worksomewhere else.1.2 The justice sectorStructures vary from place to place.The main components include:Justice systems vary,and have manycomponents.●●●●●●●●●●●●●●the legal framework (constitution, statutes, case law);the police, including eg Local Government municipal police, plus any non-statepolicing mechanisms – private security guards, neighbourhood watch schemes, etc;social crime prevention initiatives;the prosecution services;the legal profession including legal aid lawyers, public defenders;the judiciary and the courts – including magistrates and higher state courts;Councils of Chiefs and other traditional rulers as well as customary ortraditional courts;Parliament and parliamentary oversight committees;Attorney General and other government lawyers;mediators and arbitrators;the penal system – remand prisons, prisons for sentenced prisoners, and alternatives toprison such as probation services;bodies responsible for law reform, legal aid and human rights;complaints bodies, Ombudsmen, the Ministries to which they are accountable;civil society organisations concerned with the justice sector including law and BarAssociations, police associations, human rights groups, legal aid organisations, penalreform organisations, etc.12 Safety, security and accessible justice

1. IntroductionA wider definition of the security sector would include the military, paramilitary andintelligence services. Separate guidance on assistance in these areas is available in:Understanding and Supporting Security Sector Reform(Conflict and Humanitarian Affairs Department 2002)and may be relevant for example when looking at the boundaries between the military andthe police or between military and civil justice.The transition from military to civilpolicing raises special problems that should be handled with the benefit of comparativeexperience. Please contact the SSAJ team in GD for further details.1.3 Why do Safety, Security and Accessible Justice matterto poor people?Because:● poor people themselves say so1;● poor people and vulnerable groups suffer disproportionately from crime – eg theimpact of theft is more severe if the victim is poor;● poor people are less likely to invest in improving their own futures if they feel insecure● poor people’s efforts to get out of poverty are hampered by corrupt police and judicialofficers;● insecurity can prevent poor people from accessing Government services;● poor safety and security incline citizens to form self-help policing initiatives that cangrow into vigilantism, and generally reduce respect for the law;● lack of access to justice fosters corruption.We know that justicematters to poorpeople......who suffer most frommalfunctioningsystems...1.4 Why do Safety, Security and Accessible Justice matter forgovernance and development?Because the provision of law and order is a core government responsibility and is part ofthe necessary framework for economic and social development:● the rule of law is correlated with economic growth and investment. An effective justicesector promotes better livelihoods for poor people;● the rule of law is necessary for the protection and promotion of economic and socialas well as civil and political rights;● a strong independent judiciary is necessary to constrain the arbitrary exercise ofstate power;● an effective justice sector is a safeguard against corruption;● the justice sector offers one means of resolving disputes and preventing conflict.In many countries, despite the fact that the justice sector accounts for a significantproportion of government expenditure, expenditures are poorly managed.The justicesector is often an extreme example of state failure....which hamperdevelopment......and encourage abuseof state power andcorruption.1Poverty Trends and Voices of the Poor,World Bank, May 2001:http://www.worldbank.org/poverty/voices/overview.htmSafety, security and accessible justice 13

1. IntroductionDFID policy encouragesa sector approachwhich looks at cruciallinkages...1.5 Why a new approach?Justice system reform has been relatively neglected by the international developmentcommunity. Development assistance has typically focused on strengthening individualinstitutions, such as the police or the courts. DFID’s policy brings in two ‘new’ elements:...and looks at thesector from the point ofview of the poor andvulnerable.SSAJ issues should beaddressed in the PSRPprocess.●●basing interventions on a sector, rather than single institutions. Because the componentsof the justice system are connected, improvements in one part of the system can bestymied for want of improvements elsewhere, and may be necessary to improveperformance elsewhere. For example because prisons are a breeding ground for crime,reducing the prison population may be a crucial part of crime prevention strategy. Inturn, reducing the prison population may depend on increasing the use of fines andbail by the courts. (This is not to say that it is necessarily useful to catalogue all theproblems of the sector);assessing problems from a user’s perspective, and particularly from the point of viewof poor people and vulnerable groups including women, children, the elderly andminorities.Their concerns are likely to highlight issues of safety and security andgreater access to justice systems, both state and non-state, and the importance ofreducing corruption.Where countries are engaged in a Poverty Reduction Strategy process, providing supportto ensure that SSAJ issues are properly addressed is critical, both because of the povertyreducingeffects of a functioning justice system, and because PRSPs are a means ofdeveloping country owned pro-poor justice reform programmes, around which donorscan base their support.1.6 DFID’S contributionThe distinctive emphasis on the poor, and on a sector approach, will provide DFID withcomparative experience of sector reform to help support national reform initiatives and toinfluence the agenda of other donor programmes.14 Safety, security and accessible justice

2. Diagnosis2.1 Taking a strategic approach to the sectorThis means making the starting point for any intervention a sectoral – rather than aninstitutional – assessment. Sector diagnosis may take the form of formal consultations withpotential partners in government and civil society as well as other donors; participatoryresearch; literature reviews; or a combination of these methods.This approach should helpus to understand:● the critical problems faced by poor people and vulnerable groups, directly or indirectly,in obtaining legal protection and access to justice;● linkages in the system which will influence how constraints are addressed;● underlying causes of problems common to justice sector institutions;● existing reform initiatives and co-ordination structures, and gaps.The sector approachhelps to focus on theproblems of the poor,and the linkages......and to find suitableentry points...The resulting diagnosis should, in turn, help to locate potential entry points in theirwider context.Taking a strategic approach to sector diagnosis does not mean taking on the whole sectorin the sense of developing a SWAP. But it does mean interventions should be designed tomake a contribution to development of the sector as a whole. In Bangladesh for example,the sector strategy concluded that the greatest access problems relate to policing.Thisresulted in a focus on improved policing as the entry point for wider sector reform.It will not always be the case that country teams will be able to accommodate the additionof the justice sector to the list of country sectoral priorities. In these circumstances, anentry point may sometimes be provided through an intervention in another sector – publichealth projects need to take account of the health risks posed by poor prison conditions,eg as regards the spread of TB and HIV (see Box 6.4); rural livelihoods and urbandevelopment projects must ensure that poor people have secure title to their land andhousing; private sector development needs a proper legal framework eg for enforcement ofcontracts. In all these cases the design of an SSAJ component needs to take account of thelinkages with the rest of the justice sector, as well as with the other sector concerned....which may be via anintervention in anothersector.2.2 The sector assessment processIn spite of the large number of justice institutions and stakeholders, and the use of legalterminology, legal processes are relatively straightforward.When in doubt, return to firstprinciples and ask who are the main actors, what is their role, how do they go about theirwork, and what are the critical problems they face.Legal processes lookmore complicated thanthey are.What kind of sector diagnosis?This will depend on factors such as the nature and pace of reforms already taking place, theownership of and commitment to reform, the quality of existing analytic research andbaseline data, and the level of DFID familiarity with the context. Earlier mission TORs areavailable from GD.The timetable for the sector diagnosis in Nigeria is given in Box 2.1.Progress was facilitated by having a GD APOS in Nigeria to do a lot of preparatory workand maintain momentum; and by the fact that SSAJ was in the agreed Country Strategy.TORs for previousassessment missionsare a guide...Safety, security and accessible justice 15

2. DiagnosisBox 2.1: Diagnosis and Appraisal: NigeriaTimingJun 2000AugSeptOct – NovNov– DecDecJan 2001Feb – AprJunEventJoint Donors Mission to assess possibilities for supporting reform(DFID Governance Adviser plus other donors).PCN (Country team plus GD SSAJ Advice).One week scoping mission (Team as for PCN) to plan appraisalmission and identify areas needing primary research.Primary research commissioned and carried out by NigerianAcademics and NGOs.Three week appraisal mission (Team as for PCN plus: Nigerian humanrights lawyer; lawyer/academic with specialist experience in accessto justice; South African criminologist with expertise in non-statesystems of justice in Africa; Malawi based barrister/NGO activist withAfrica-wide expertise on prisons and penal reform; lawyer/economistwith Africa expertise; and 2 police consultants.Preparation of short synthesis report of sector appraisal analysis.Circulation of synthesis report; large stakeholder workshop to discussapproach and sector issues.Drafting programme documentation.Development Committee meet and approve programme.NB:Throughout the period, DFID Nigeria supported promising small-scale initiatives, contributing to thedemand for reform, from the Governance Fund and from the appraisal budget....Governance Reviewsand the Frameworkshould help.Using the Governance Review FrameworkPart 5 of the Governance Review Framework (“Personal Security and Access to Justice”)provides useful guidance on the questions to ask (see Box 2.2; the full framework can befound on the Governance Resource Centre website). If there has been a Review thisshould cover the basic ground, and should include a bibliography giving additionalguidance on country-specific sources of information.16 Safety, security and accessible justice

2. DiagnosisBox 2.2: Governance Review FrameworkKey Capability:“to ensure personal safety and security in communitieswith access to justice for all”5.1 How free are all people, especially poor and vulnerable groups, from physicalviolation of their person, and from fear of it?5.2 How equal, secure and affordable is the access of people, especially poor andvulnerable groups, to justice, to due process and to redress in the event ofmaladministration?5.3 How efficient and predictable is the justice system in dealing with both civil andcriminal cases?5.4 How independent are the courts and the judiciary from the executive, and how freeare they from improper interference and corruption?5.5 How much confidence do people have, especially the poor and vulnerable, in thelegal system to deliver fair and effective justice?5.6 To what extent are the police free from corruption, and publicly accountable fortheir activities, both nationally and to local communities?5.7 How far do the criminal justice and penal systems observe due process -rules ofimpartial and equitable treatment in their operations?5.8 To what extent is the penal system free from overcrowding and abuse?5.9 How effective and accountable are informal or non-state legal processes andprocedures, especially for poor and vulnerable people?5.10 Are the traditional/pre-modern forms of justice linked into the state system in auseful and efficient manner, e.g. African customary law?5.11 What measures, if any, are being taken to remedy publicly identified problems inthis field, and what degree of political priority and public support do they have?5.12 What institutional and other resources are there within the country to work on theimprovement of the sector?The parameters of sector assessmentPrior to conducting a sector appraisal, it is useful to identify the broad parameters of theassessment process.The kind of issues to consider are:● what is the political context? To what extent does the justice system (in particularthe police and the judiciary) enjoy political independence and financial support? Dothe formal institutions have effective control over all regions of the country? Is theexecutive constrained by legal rules?● is there social demand for safety, security and justice? If so, how much? Whatmatters to people most? Conventional supply-side institution building interventions areunlikely to have much beneficial impact without a social demand for reform.● to what extent are ‘traditional’, informal, or non-state systems of justiceavailable? Such systems (eg community courts, or local policing mechanisms) are oftentrusted and used far more than the formal state system. Do such institutions exist? Dothey apply norms that are broadly supported by all sectors of the community? Are theirrules and decisions consistent with international human rights standards? Are thesesystems amenable to funded projects/ interventions or are they socially and politicallyimmune from donor intervention? How do the state and non-state systems interact?Are the latter formally recognised by the state system?Set the assessment inthe local political andsocial context...Safety, security and accessible justice 17

2. Diagnosis...and remember thatthe linkages betweeninstitutions can be asimportant as theinstitutions themselves.Understanding linkagesThe literature is usually better on individual components of the system than it is atexplaining the linkages between them.These linkages are crucial: successful sectorprogramming depends on a detailed understanding of any linkage malfunction; andimproving the system means improving the linkages as well as the institutions. Linkagesmay be procedural – the formal processes by which users pass through the system; orbetween informal and formal systems; or between the institutions and the bodies holdingthem accountable. Appendix 2 contains some examples.Look for entry pointsthat give greatestimpact...Identifying entry pointsThe most effective entry points will bring different parts of the sector together on issues ofcommon concern.Whatever entry point is chosen, maximum impact will be derived fromusing the intervention to make linkages to wider sector issues, or influencing the directionof larger donor interventions. It will also involve combining approaches eg pull and pushinfluencing, top down and bottom up interventions, supporting government reform andexternal advocacy by civil society. Exposure to comparative experience is also likely tobe valuable.Box 2.3: Possible entry points●Supporting inter-agency working in one district eg Chain Linked Uganda●●●●Strengthening sector policy making, leading later to SWAP eg MASSAJ Malawi orJLOS Uganda.Interventions in ‘gaps’ in the reform agenda – typically either poverty relevant (egpolice/community interface – Lesotho, South Africa) and/or linkage areas (familylaw/women/children’s rights eg RRRT Pacific).Establishing pre-conditions for reform (improving the evidence base, strengtheningpolicy-making processes, building coalitions for reform, piloting new approacheseg Nigeria).Support reformers’ (eg Ministers/Ministries of Justice) agendas to begin wider reformprocess eg Ghana.●Support reform in a non-contentious area (eg conflict prevention policing Sierra Leone).●Build coalitions for reform eg work to raise demand for reform (support to watchdogand advocacy CSOs), work with government to expose those interested in change tobest practice, small scale pilots etc – "ideas aid" eg Indonesia, Pakistan.Even in the absence of political leadership and/or bureacratic commitment, DFID can stillplay an important role in working to put in place the pre-conditions for successful reform,and developing some multi-stakeholder agreement on a reform agenda.2.3 A strategy for sector reform...and an appropriatestrategy.The strategy adopted will depend on context and the approach taken to assess it.By way of illustration, the following four SSAJ programmes currently designed or indevelopment share the focus on poverty reduction as well as system linkages, but each isdesigned differently.18 Safety, security and accessible justice

2. DiagnosisBox 2.4: different approaches to project design“Incremental” approach – Bangladesh: a sector assessment revealed that (a) the publicsaw the police as the major problem but that (b) the donor community saw them as toointractable a problem and were concentrating on other parts of the system. But the Policedecided to initiate reforms and requested assistance from DFID. DFID have started tobring together the Police and “watchdog” CSOs, to help the Police develop their ownreform agenda guided by a better understanding of what the public wants. This will beused to work incrementally out into other parts of the system through existing linkagesbetween the police and eg the lower courts and the prosecution service. An AccessibleJustice Fund will explore other potential links eg through pilot schemes with CSOs;beneficiaries will be expected to share experiences and build coalitions. Time from PCNto DFID approval: about 1 year.“Programmatic” approach – Malawi: Research demonstrated problems at every level ofthe system. The ‘Programmatic approach’ began with projects in the different institutionsand moved from there to a wider focus on institutional linkages and the development ofthe building blocks for a SWAP – a joint donor approach with an emphasis onstrengthening government procedures so that funding will ultimately be centrally delivered.Time from PCN to DFID approval: about 2 years.“Go straight to SWAP” approach – Uganda: 6 donors including DFID are supporting aSWAP Development Fund. A sector SWAP Secretariat was established in 2000 and a fullyjoined-up process should be in place by 2002/3. Progress is good on the commercialjustice front but has been much slower on the criminal justice side. Development period:ongoing.“Thematic approach” – Nigeria: an innovative approach concentrates on policydevelopment at Federal level, improving institutions at State level, and coalition buildingincluding CSOs. The aim is a Nigerian-led reform process, starting from the perceptionof poor people that existing mechanisms do not respond to their needs. Themes will bedeveloped from existing initiatives, and an SSAJ coalition developed. Time from PCN toDFID approval: about 9 months.2.4 What help and information is available?The country team, usually led by the Governance Adviser, would normally initiate a sectorassessment. SSAJ specialists in GD, and the Governance Resource Centre are available toprovide back-up advice and support including:● assisting the country team to locate potential consultants, comparative experience, andadvice;● providing access to experience from other DFID programmes;● advising on strategy, entry points and programme development (including selectionand appointment of programme managers).For a rapid and early appreciation of the issues, there is no substitute for some first handexposure to police stations, courts and prisons....GD and the GRC canprovide support......but there is nosubstitute for first-handexposure to localinstitutions.Safety, security and accessible justice 19

3. Common implementation issues across the sectorCommon issuesinclude......human rights...3.1 IntroductionThis chapter looks at the common issues affecting interventions anywhere in the sector,and common problems.3.2 The Role of SSAJ in implementing human rightsThe state structures embraced by an SSAJ strategy are pivotal to the legal protection andenforcement of human rights, although in states with a poor history of adherence, humanrights are generally poorly understood by those working in the justice system.An SSAJ intervention can help by:● promoting fairer legal processes such as the right to a fair trial;● increasing respect for and protection of women’s rights as in CEDAW by addressingsources of legal discrimination against women; and● improving protection of wider social and economic rights, and states’ obligations tofulfill those rights, by improving people’s ability to bring successful claims on issues suchas housing, education and health....establishing the viewsof the poor......and the vulnerable...3.3 Understanding user perspectivesGetting information from the poor on their engagement with the justice sector may bedifficult. Poor people often show a deep distrust of legal institutions and generally prefer toavoid involvement.This may be due to a strong social stigma against using the law, orsimply a rational response to the opportunities and risks that the justice sector presents.Alienation is inevitable when police malpractice goes unpunished, courts operate in aforeign language with formalistic procedures and obscure technical terms, and where theoutcome is often determined by bribes or influence. Moreover, the poor sometimes live incircumstances of perpetual illegality – in squatter settlements, trading in violation of formalregulations, and engaging in illegal income-generating activities (such as using prohibitedforest resources or selling sexual services).It is also important to understand the perspective of groups particularly vulnerable todiscrimination – women, children and young people; minorities (language, religious or ethnic);elderly people; non-nationals; and refugees – and to look for ways of improving their position.Large-scale programmes might consider a research component explicitly designed to gatherdata through user surveys, interviews, and so on. At the stage of designing an intervention,however, the information can probably be drawn from secondary sources. As such it will beindicative rather than comprehensive. Potential sources of information include:● anecdotal accounts in anthropological studies, newspapers, survey results, and studiessuch as Voices of the Poor;● CSO documentation and interviews;● human rights reports (eg UN Committees, Human Rights Watch, US StateDepartment);● reported crimes and reported crime-to-conviction rates;● victim surveys for data on unreported crimes;● representative field interviews;● participatory stakeholder consultation processes.20 Safety, security and accessible justice

3. Common implementation issues3.4 Developing partnershipsDFID has the capacity to act as a catalyst in a reform process and to influence the nature ofreform. But there is no substitute for country ownership and commitment.This can beencouraged by supporting partnerships between stakeholders within the sector.The state on its own cannot provide SSAJ.The provision of law, order and justice is alsothe concern of civil society. But justice sector CSOs have a tendency to conflictualrelations with government – the challenge is to bring them together to form alliances, and(where appropriate) to work with government (eg providing victim support services).The most common model of positive change in the SSAJ arena is based on coalitionbuilding between state and civil society, and one of the most creative approaches is to bringstakeholders together to address common issues (eg delays, corruption,‘bad’ law)....building localstakeholderpartnerships......while minimizingconflict between CSOsand government...Box 3.1: Police/CSO cooperation in VenezuelaIn Venezuela, Women and Children’s Units form a network of specialised integratedservices and support in the field of family and sexual violence, based both in policestations and in civil society organisations They were set up in response to the Women’sMovement’s long-standing demands for action on family and sexual violence. An NGO,Grupo Venancia, works with the Units in police stations and engages in awareness-raisingwith the stations’ female staff and women police officers.3.5 Tackling constraintsa. Influencing public opinionPublic attitudes – encouraged by the language of politicians and media – are oftenexpressed as a wish for tougher action and harsher punishments. Public interest needs to beengaged in more intelligent debate. A public information strategy may be needed.Thisshould be realistic about the time needed for reforms to have an impact: for example,crime may well increase in the short term as the police grapple with reform; and criminalsmay re-offend whilst on bail or after being released “too soon”....winning overunenlightened publicopinion...Box 3.2: Influencing public opinion in RussiaDFID is funding an intervention to establish non-custodial alternatives in pilot areas, withRussian CSOs supervising non-custodial sentences. A large component of the programmeis focused on influencing public opinion (which tends to be punitive and biased against noncustodialoptions) through radio, magazine articles and the worldwide web. Without this,non-custodial measures were likely to prove electorally unpopular, resulting in a crucialloss of political support.Increasing use of imprisonment is often blamed on public demand. But a properlyinformed public will support effective non-custodial measures: a community servicescheme in Zimbabwe was sceptically received at first, but now commands widespreadacceptance and support on cost-effectiveness grounds (Box 3.3). Similarly, action was takenin South Africa to build acceptance of the greater use of bail (Box 6.3).Safety, security and accessible justice 21

3. Common implementation issuesBox3.3: Community service in ZimbabweA scheme was started in Zimbabwe in 1992 in response to a rapidly rising prisonpopulation and costs. 60% of convicted prisoners were serving sentences of 3 months orless. The community service scheme costs $20 per person per month as against $120per prisoner. In addition, the community benefits from the work done by offenders. Forexample a headmaster complained that he had no books or pencils for his students. Buthe had a piece of land attached to the school. The local magistrate ordered offenderssuitable for community service to work the land, plant it and harvest the crop. At the endof the season, the proceeds from the sale of the crop enabled the headmaster topurchase the stationery and books that he needed.b. Containing oppositionThere may be considerable opposition to the reform agenda both from within the legalinstitutions and from outside. For example, the police may see themselves as defenders ofthe state, rather than as servants of the people, and resist changing an authoritarianapproach.Vested interests, including the rich and powerful, will often defend the status quo....and stakeholdersopposed to reform...A strategy to manage the risks posed by opponents needs to be developed at design stage.This may include:● starting interventions in areas where no threat is perceived – such as basic training orengaging civil society in projects such as legal aid or crisis centres; or in locations thatare remote from the centre such as rural communities;● presenting up front the powerful economic arguments for reform;● exposure to comparative experience of reforms elsewhere;● targeting quick wins;● building incentives into the programme, eg staff incentive schemes in plans to improveoutputs from prison farms and industries.But in the end fundamental reform requires support from the top, and unless this is inprospect it is usually not worth starting a major intervention.Box 3.4: Developing Sectoral SolutionsIn many countries, the major institutions of the justice sector – the police, prosecution,courts, prisons, probation service, legal aid bodies, and so on – frequently work underdifferent ministries without mechanisms to promote cooperation. Experience shows thatcoordination within the justice sector offers real opportunities for improved performance.Co-operation can be encouraged through various means:●●●●●Joint conferences and stakeholder meetings to exchange views (eg Ekiti State inNigeria).Common policy-making initiatives through inter-departmental committees (eg CriminalJustice Committee in India).Joint training where similarity of topic and grade permit (eg Human Rights Training inPakistan).Common management committees – such as the Criminal Justice Committees inNigeria and the Chain Linked Project in Uganda.Joint projects such as the implementation of shared information technology (egGuatemala).c. Lack of resourcesThe sector is often under-resourced, with most money within the sector going to thepolice. Financial flows may be unpredictable. Pressure from reform coalitions together with22 Safety, security and accessible justice

3. Common implementation issuesmore liberal public attitudes and donor support can lead to increased funding.These effortscan be supported by:● developing capacity in justice sector bodies to negotiate and manage budgets;● promoting linkages between justice reform and anti-corruption or crime reductionprogrammes which do attract public support;● highlighting the cost-effectiveness of reform initiatives such as alternatives toimprisonment;● highlighting the general economic benefits of an effective justice system for individualentrepreneurship as well as to create an enabling environment for the private sector.d. Lack of accountabilityAlthough legal institutions have an important role in holding government agencies toaccount, justice sector institutions are themselves often relatively unaccountable for theirperformance. Separation of powers means that judicial performance is not open togovernment or parliamentary scrutiny, and the mandate of Ombudsmen typically excludesthe judiciary. Many countries lack effective watchdog agencies – Police ComplaintsAuthorities, Independent Judicial Service Commission, National Human RightsCommissions....tackling a lack ofresources......and ofaccountability...Clear accountability arrangements are essential for efficient and effective performance. Atthe national level, police and prisons should be accountable to the government for theirfinancial and operational performance. Judges and magistrates should also be heldaccountable for their performance, possibly by senior members of the judiciary orby an Independent Judicial Service Commission.Where possible arrangements for public oversight and accountability should also bedeveloped.These can include prison visitor schemes, prison standards commissions,inspectorates, media access, parliamentary committees, etc. Police-community relationscouncils can provide effective civilian oversight of policing (though there is a danger oftheir becoming politicised and partisan).Box 3.5: Local accountability in MalawiCommunity policing, which involves consultation with the community, has been linked totraditional/customary structures. This enables community representatives to raiseconcerns directly with the police, to be involved in police/community initiatives, and to beable to question police about their actions – or lack of action.e. CorruptionSurveys typically put the police and the judiciary at the top of the list of institutions whichrespondents believe to be corrupt. Corruption occurs at all levels: victims pay bribes topolice or court officials to gain access to the system; offenders pay bribes to keep out of it;prisoners pay bribes to be released on bail; victims bribe both police and witnesses toattend court and give evidence; litigants bribe the magistrate or judge in the hope of afavourable verdict. In some police forces, appointments offering opportunities for highbribe income are bought and sold....and dealing withcorruption...Corruption is often endemic, and very difficult to root out. A public-sector wide assaultmay be necessary rather than one limited to the justice sector.Within the sector action maybe required to:● address low pay levels, especially for police and prison officers, though pay reform onits own is unlikely to be sufficient;Safety, security and accessible justice 23

3. Common implementation issues●●●●●●●●introduce codes of conduct, disclosures of income and assets for judicial officers,together with independent audit and investigative bodies; (eg Commonwealth Judgesand Magistrates Association);establishing independent complaints and oversight bodies, with powers of investigation(and possibly) prosecution; eg Botswana;improving transparency and public access to court decisions and police actions;eg Karnataka;reducing discretionary powers of court officials and judges over which cases will beheard, possibly by computerising of case management systems; eg Bangalore, Chile;monitoring the consistency of court decisions; eg Chile, India;simplifying judicial procedures by imposing time constraints, and reducing the numberof steps involved in hearing cases in court; eg Chile, India;increasing the range of alternative institutions which citizens can use to resolve legaldisputes; eg Russia;in police services anti-corruption strategies usually comprise a wide spectrum of bothrepressive and preventive measures.The most frequently used measures are theintroduction of stricter punishments for corrupt behaviour, ethically based trainingprogrammes, and stricter recruitment criteria: eg Police Integrity Commission,Queensland, Australia; Independent Complaints Department, South Africa; ProactivePolice Anti-corruption Action, Sierra Leone. Interpol have produced “Global standardsto combat corruption in police forces/services”2. See also “Understanding andPreventing Police Corruption; Lessons from Literature” (Police Research Series Paper110,Tim Newburn, Home Office 1991).Box 3.6: DFID Judicial corruption projectDFID is working with Transparency International to support a group of 10 Chief Justicesfrom Australia, Canada, India, Nepal, Bangladesh, Sri Lanka, Nigeria, Uganda, Tanzaniaand RSA to develop concrete action programmes to reduce corruption within thesejurisdictions. The group has developed a code of conduct and a survey instrument and willfinance pilot action programmes in Sri Lanka and possibly Uganda. UNCICP will financea parallel programme in Nigeria....and sometimes aninappropriate legalstructure.f. Law reformBad law is a constraint to structural reform. But passing new legislation in itself is oftena difficult process.2http://www.interpol.int/public/corruption/standard/Default.asp24 Safety, security and accessible justice

3. Common implementation issuesBox 3.7: The necessity and difficulty of legal reform●●●●In Nigeria, the introduction of alternatives to imprisonment requires the amendment ofthe criminal law in each of its 36 states.India, like many Commonwealth countries, retains the colonial doctrine of governmentimmunity that shields the government from civil liability under tort law. The Indian LawCommission drafted legislation in 1967 to amend this anomaly, but the IndianParliament has still to pass it.In Rwanda, Anglophone common law models have inspired many recent proposals forlaw reform, but since the underlying institutional and procedural framework derivesfrom a Francophone civil law model, extra care must be taken to ensure that the newlaws will actually work.In Uganda the law on defilement prescribes a minimum sentence of life imprisonmentfor sexual relations with a girl aged below 18. This is a blackmailer’s charter and isresponsible for the majority of remand prisoners and a high proportion of the HighCourts’ case backlog.In many developing countries, legislation is often outdated, sometimes going back tocolonial times. It may not reflect current international human rights obligations, or evenfundamental freedoms subsequently enshrined in the constitution. It can stand in the wayof bringing about practical change.The main constraints which arise in law reforminclude:● the lack of a Law Reform Commission or similar body to draft appropriate legislation;● the practice of “cut and paste” legal reform using foreign legislative models withoutattention to differences in legal and institutional structures;● inadequate parliamentary time or commitment to pass new legislation.Safety, security and accessible justice 25

4. Safety and security4.1 IntroductionProviding safety and security 3 for its citizens is a major responsibility of government. Itsmost visible form is a state-funded police force 4 . In many countries the state police aresupplemented by non-state structures such as community guards, neighbourhood watchesand private security. This combination is commonly referred to as policing. State and nonstatepolicing are both integral to improving safety and security.Policing, which includesboth state and nonstate......must be adequatelyintegrated into thejustice system.This section covers state and non-state policing, as well as other issues that impact onpeoples’ perceptions of safety and security, including crime prevention, and support to thevictims and survivors of crime.A recent DFID synthesis study5 concluded that there must be greater integration ofpolicing with the rest of the justice system, and noted the need not to ignore the extentto which communities prefer to use more traditional solutions – including non-formalsystems of policing.Good policing needscompetence andpartnerships.The old authoritativeapproach has oftenfailed......a focus oncommunity needsmay be better...4.2 The case for an interventionGood policing is founded on the police doing their specific tasks well, and developing andsustaining effective partnerships with a range of other state institutions, civil societystructures and business.Many developing and transitional countries inherited a paramilitary model of policing,usually a national police force, controlled and directed by government.These had apredominantly reactive, authoritarian approach, based on deterrence and enforcement.Relatively little emphasis was given to crime prevention and to the needs of victims or therights of suspects.That approach did not secure the trust, co-operation and involvement ofthe community, particularly women, and in many countries it has also failed to controlcrime. It has failed rural communities because of their remoteness, and urban squattercommunities because of their illegal status.A different approach is to help develop state and non-state policing systems, includingcrime prevention and victim support systems, focusing on community needs andcommunity involvement. Evidence suggests this is more cost efficient, more accountable,and can be more effective in securing safety and security. Citizens are protected from harmand victimisation, achieved partly through the efforts of the police, and partly through theco-operation of different sectors of civil society.This approach demands a professional3This deals with internal safety and security rather than threats from outside which are normally dealt with by themilitary.4The police are an institution employed by the state and given primary responsibility to use legitimate force tosafeguard peace and order. In a democracy a police service exists to support and protect democratic rights so thatall sections of the community can enjoy a safe and secure environment.5Biddle K, Clegg L,Whetton, J. Evaluation of ODA/DFID Support to the Police in Developing Countries –Synthesis Study. Centre for Development Studies, Swansea, October 1998.26 Safety, security and accessible justice

4. Safety and securitypolice service, working alongside CSOs and non-state systems6 which are focused oncrime prevention and committed to partnership with the police.4.3 Towards an effective strategyAn effective safety and security strategy ideally combines three components:●●●improving core functions of the state police: patrolling/guarding, receivingcharges from the public, detection, preparing (and in some countries conducting)prosecutions;mobilising a wide range of stakeholders, including the police, in sustained effortsto prevent crime.This is sometimes referred to as community policing. It does notreplace the core historical functions of the police, but enhances them;emphasising that the police are an integral part of a wider system of justice,fostering linkages with other parts of the system and relevant civil society structures.a. Improving the core functions of the police.A drastic public policy revision is often needed to ensure that policing takes the interests ofthe poor seriously – and community policing can be one element in such a strategy....but this is a majorchange...The process of change can involve the following paradigm shifts:Box 4.1: Examples of what needs to be achievedPARAMILITARY/ENFORCEMENTFROM A FORCE …From meeting the interests of the richand powerful.From centralised command and controland isolation from the community.From secrecy and lack of democraticaccountability.From reactive.From law enforcement driven.From unsympathetic.From detachment.From abuse of human rights andunethical behaviour.DEMOCRATIC POLICE… TO A SERVICETo servicing the needs of all citizens.To community consultation,participation and partnership.To local accountability and openness.To proactive and responsive.To the prevention of crime.To victim focused.To integration with other elements ofthe justice sector.To the protection of human rightsand ethical policing practices.6In many developing countries non-state policing systems have developed in line with village structures, andinclude vigilante groups and community guards.They are an important element in securing safety and securityfor people living in remote areas. Other non-state policing includes private security companies, often used by thewealthy, or by municipal authorities to provide an alternative or additional visible policing presence. Non-statebodies can resort to mob justice, can easily fall under the control of political factions and can be guilty ofprejudice and discriminatory practices particularly towards women eg they may discriminate against victims ofrape and child abuse.Safety, security and accessible justice 27

4. Safety and security... local ownership andsolutions that will worklocally are crucial.Catching andprosecuting criminalsremains important......community policingneeds cooperation...Important lessons from experience7 include:● foreign assistance cannot produce reform against the wishes of the host government oragainst the wishes of the police. Unless elements in a police force are committed toreform, it will not occur;● foreign experts tend to recommend what they are familiar with at home regardlessof its local applicability.The most ‘developed’ police systems are not necessarily thebest models;● the impulse to democratic reform may be weakened by a public belief that it willincrease their vulnerability to crime and disorder;● civil unrest tends to undermine the separation of police and military responsibilities● CSOs have to learn to work with, and not just against, the police;● indiscipline and corruption can stall or prevent reform.b. Community policing and crime preventionThis is not just about consulting with the community; it is also about responding to theirconcerns and involving them in problem solving. It is as much about developing trust andgood behaviour as about operational effectiveness – but enforcing the law and catchingcriminals remain important and vital functions, essential to crime prevention andreduction. Special provision should be made for dealing with women and children.The community policing approach works only if the police, the government, the localcommunity and civil society are willing to work together.Where police/communityrelations are poor, external facilitators – eg NGOs used to working at grass roots level –might be able to bring the two sides together.Box 4.2 Use of third parties in Lesotho and South AfricaIn these countries relations between the police and the community or elements of thecommunity were very poor. In both countries civil society has been successfully used tobring the police and the community together and to train both in consultation, jointproblem solving etc.The strength of a community policing approach is its flexibility. Any innovationwhich brings the police and the community together in a working partnership shouldbe encouraged....which can help focuscrime prevention.Crime prevention is more effective if properly prioritised and targetted, for example oncases of repeat victimisation or crime ‘hot spots’. It is also more effective when a‘partnership’ approach is adopted.7“Democratising the Police Abroad,What to do and How to do it”. David H Bayley, School of Criminal Justice,State University of New York at Albany, October 2000.28 Safety, security and accessible justice

4. Safety and securityBox 4.3 Examples of crime prevention approachesSocial Crime Prevention 8●●●●●●●●●●●Revitalisation of communities.Youth Programmes.Drug education and preventionprogrammes.Job training programmes.Diversion programmes.Provision of leisure facilities.Guards.Creation of job opportunities.Sentencing and criminal justicepolicies.Support for parents.Public shaming/humiliation.Situational Crime Prevention 9Reducing Opportunities● Target hardening – locksand bolts.●●●●Neighbourhood Watch.Women’s transport.Property marking.Animal branding.Increasing Risks● Better crime detection.●●Community Guards.Street lighting.Reducing Rewards● Discouraging purchase ofstolen goods.c. LinkagesEffective safety and security provision needs effective linkages between the police andother agencies. In most countries most crime is committed, and suffered, by young menaged 15 -25. Other government agencies, CSOs and business can help: employment, skillsrelated training courses, sports and leisure activities and community work or service canassist in diverting young people from crime. Improved support and compensation tovictims and survivors can be provided by government, through CSO’s or volunteersworking closely with the police and in the courts.Training can be made available to assistin this process.It needs linkages withother agencies......and with civil society.Box 4.4: Examples of partnership approachesCrime prevention panels.Schools programmes, includingschool safety plans.Watch schemes.Crime prevention campaigns(national and local).Domestic violence units.Community policing.Local authorities, communities, police,business.Education, Health, Social Welfare, Police.Communities, business.Government, police, other agencies.Police, civil society, local authorities,welfare, health.Police, communities, local authorities, business.8Social Crime Prevention focuses on the offender and the causes of crime. It is aimed at tackling socialconditions and factors which influence and motivate individuals to become offenders, and includes measures thatattempt to remove the social and motivational causes of offending.9Situational Crime Prevention or primary prevention relies on a preventive approach that focuses on the actof crime and on the settings of crime. It aims to reduce opportunities for crime, to reduce the rewards, and toincrease the risks for the offenders.Safety, security and accessible justice 29

4. Safety and securityLinkages help ensureeffective performance.Effective linkages are also critical to institutional performance: investigating officers need toliaise with prosecutors about the soundness of evidence; community structures need to bekept informed about the timing of bail applications; communities need to keep the policeabreast of their problems; police, prisons, court administrations, prosecutors and witnessesneed to keep in touch about court dates and appearances.The aim is to ensure thatinformation flows efficiently through the system, within and between institutions – withparticular emphasis on successful prosecutions and crime prevention. Better co-operationcan also help improve case management, file preparation and the meeting of agreed targets.4.4 Planning and appraising an interventionChange needs newthinking...The main parties involved in the reform process are the government, police, and civilsociety.The pace of change is not in DFID’s hands. It will usually require some newthinking about the relationship between the police, civil society and relevant parts of thestate.The key questions are set out at Appendix 3; the answers will help put togetherpreliminary ideas for discussion with host governments....and major reformtakes time...Getting starteda. How to work with the state policeIt will take time for people to accept that yesterday’s authoritarian police officer is today’sfriendly, co-operative one – they are usually one and the same person. In dealing withthe state police consider a progressive approach (Box 4.5).Think about starting bystrengthening positive aspects of the existing system, as well as working towards theacceptance and ownership of a new one – for example improving managementcompetence and understanding, introducing incremental improvement to capacityalongside the envisioning and modelling of a community policing/crime preventionapproach.Look to involve and encourage civil society groups to assist in the process, in contrast toworking in opposition to the police.Box 4.5: Progressive approachesA project in the Free State, South Africa focused on capacity building in the ProvincialMinistry of Safety and Security, and in the senior echelons of the police service, but wasalso engaged in capacity building at community level in supporting the development ofelected Community Police Forums through NGO’s....not least because ofresource constraints.Introduction of Victim Support Units in Zambia, Community Relations in Lesotho andCommunity Relations and Liaison Units in Zimbabwe has greatly helped the police tobecome more people friendly.The police are usually poorly resourced – both in material and human terms – and thisaffects their capacity for absorbing and implementing change.30 Safety, security and accessible justice

4. Safety and securityBox 4.6: The Scale of the ProblemProblemPolice/ population ratio(UN recommended 1: 450)Logistics and GeographyQuality of Human ResourcesCorruptionBudgetsHuman Rights AbuseCommentMany developing countries have ratios of 1:1000 andabove. Apart from recruiting more officers (expensive)there is a need to ensure effective deployment andsupport from alternatives.Most forces have inadequate vehicle fleets and poorcommunications, preventing timely response and impedingaccess to many rural communities. Support for policeaccess to remote areas may be required at an early stage.Likewise support to transport prisoners to court forremand/trial hearings.Many junior officers are illiterate or semi-literate.Insufficient investment in training means officers are underskilled– particularly managers who will be responsible forimplementing change. Focused training will help.Can be institutionalised and flows from the top. Selfinterestwill ensure resistance to change. Effectivediscipline procedures and an effective changemanagement strategy will be required at an early stage(see also Chapter 3)Usually inadequate with irregular and unpredictable fundingthat prevents effective planning and development. Poorpay and conditions do not attract quality recruits.Improving financial management is important. Improvingconditions of service will attract better recruits and helpto reduce corruption.Police should protect Human Rights, but have been oneof the main abusers. Safeguards include Lay Visitorsto police stations, improved interview skills and prisonerrecords and better supervision by external agencies.New accountability structures are often required.If policing is not independent of party political influence, action will be required to depoliticiseit and restore community confidence. Is there a need for new legislation and/orthe reform or modernisation of the legal framework?It may need newlegislation.Box 4.7: Law reform in LesothoFollowing democratic elections support was provided by DFID to formulate and implementa new Police Act. The Act was designed to prevent political interference in the Police andto establish systems and structures to monitor police performance and standards.In designing interventions it is important to identify entry points where it can bedemonstrated that change is possible, and will be supported by adequate human andlogistical resources (Box 4.8). Look for areas where resources are available and/or therehas already been some progress in the transition from law enforcement to public servicedelivery. Often this will depend on a key individual or structure being identified todrive change.Choose entry pointscarefully...Safety, security and accessible justice 31

4. Safety and securityBox 4.8: Examples of commitmentRecent police training development work in Pakistan had limited success due to theinability of the police to provide their agreed contributions. On the other hand, in Ethiopiaa very impoverished police force made genuine efforts to maintain its resourcecommitments to sustain the police development project work....find out about thenon-state police......and their standards......and see how they canwork alongside thestate police.b. How to work with non-state policeEstablish what systems exist, how credible they are and what people think of them. Arethey trusted, do they discriminate against women or ethnic groups, do they work withinaccepted human rights norms? If private security or other non-state policing exists, is itcontrolled/regulated? If not should it be? How can the state police work with non-statebodies to improve safety and security? Can training help? Can national or local structuresbe established which will bring those responsible for policing together?Successful initiatives with non-state policing usually depend on state police involvement,and/or the development of internal controls to safeguard against discrimination orvigilantism.Where credible such arrangements can help the police and enhance thebenefits of community policing.The provision of training in responsible and lawfultechniques, basic equipment (e.g. bicycles, torches, whistles) and access to police radiosystems, can improve effectiveness at little extra cost. Setting up of accountability processesmay also help.Box 4.9: Volunteer Peace Keepers in South AfricaPeace keepers are trained (communication skills, mediation skills, etc.) and serve for sixmonths. They assist the community in every kind of unarmed conflict, mediating domesticconflict, reporting crime to the Police, conducting general foot patrol and giving lecturesat local schools eg on domestic and sexual abuse and crime prevention. They are paid asmall monthly sum (but this jeopardises sustainability and may be replaced by provision oftransport and meals only), and are given vocational training – e.g. as electricians,carpenters, secretaries – to improve their future prospects.The peace keepers have strong community support and a healthy relationship with thelocal Police. Their presence seems to have been instrumental in a significant reductionin crime.Encourage localpartnerships...c. How to work with civil societyMost crime is local, and requires a local response involving local people who understandlocal issues.There is a need to work with groups that can help to devise effective jointstrategies to enhance feelings of safety, and which can help sensitise and train both state andnon-state policing systems particularly in relation to crimes against women and children(Box 4.10). For example:● organisations/groups concerned with the administration of justice, and with health,welfare and education (the latter reach deep into the community, and can often detectdomestic violence and child abuse);● the voluntary sector – which can provide or enhance support to victims particularlywomen and children;● NGO’s working in the fields of human and civil rights, legal representation and legalliteracy who can provide support to victims and suspects.Consider establishing structures to bring these groups together.32 Safety, security and accessible justice

4. Safety and securityBox 4.10: South Africa – Western Cape Community Safety Forum ProjectThis Project has established pilot Community Safety Fora to bring together the key playersin the justice system – local government, justice, correctional services, police, education,business and the community – to implement a National Crime Prevention Strategy (NCPS).They jointly develop a community safety plan, identify who can do what from existingbudgets and raise funds from all levels of state, business and the donor community fornew projects. In effect they are implementing a local version of the NCPS.While in some countries local government is in its infancy it can play an important role inimproving safety and security and promoting crime prevention. Generally this will be theresponsibility of the police, but experience shows that crime prevention can be moreeffective when it is driven by a partnership approach involving, or as in the UK led by,local authorities....and if possible involvelocal government.4.5 Responding to requests for assistanceEquipmentMany police forces have large-scale logistical assistance as their top priority. However,experience shows that logistical support alone does not necessarily bring about sustainableimprovements. Save in extreme cases of emergency (eg Sierra Leone) the provision of largeamounts of equipment and vehicles is not usually a good plan, although there may be aneed for limited logistical assistance to address specific needs or gain public confidence byimproving effectiveness or access to remote communities. Otherwise it is necessary to askwhat the request will achieve. For example partners often argue that access to moderninvestigation techniques (use of DNA; electronic automatic fingerprint identification)will enable them to become as skilled as western models. However, it is not appropriateto implement such techniques if fundamental investigation skills have not been developed– as is usually the case. Moreover the technical architecture for such systems is itselfsophisticated, and without substantial investment is unlikely to be robust enough tosupport their use.The emphasis should be on persuading recipients, at least initially,to focus on improving basic skills and techniques of evidence gathering. In the firstinstance it may be more effective to bring in technical skills to help upgrade workablemanual systems.Large scale logisticalsupport is usually notthe answer......and basic skills mayneed honing beforelatest investigationtechniques areintroduced.TrainingIn many cases what is needed early on is the provision of fundamental management andpolicing skills training and re-training.Public order trainingMany requests are received to improve the capacity of state police to deal with publicorder in a manner that complies with Human Rights Conventions and Treaties.This mayentail public order equipment such as riot shields and batons. An approach is to considersupport for skills training in conflict management and public order planning andmanagement from the perspective of reducing tensions and the potential for communityviolence, through consultation processes.Safety, security and accessible justice 33

4. Safety and securityPerception surveys maybe the best way ofmonitoring progress.4.6 Monitoring and evaluationMeasuring progress and achievement is difficult. An over-simplistic approach based onquantitative performance indicators, such as the level of crime, can be misleading – greaterconfidence in the police may result in more crime being recorded, not less.Issues of quality of service, perceptions of safety, and confidence in policing are crucial, andcan be measured by victim/perception surveys. Base line data is required as a yardstick toestablish progress.Box 4.14: Examples of possible performance indicators – State PoliceCore Activities Goals Performance TargetsIndicatorsReassurance of To promote Public perceptions of To improve oncommunity. community safety. level of safety. last years’(Survey)perception.Response to To respond promptly The level of public To achieve acommunity. to calls from the public. satisfaction with satisfactionthe police response level of moreto calls. (Survey) than …%.Prosecutions. To deal speedily with The percentage dealt In partnershipyoung offenders. with within target time. with other justicesystem agenciesto deal with 90%in … days.Crime To prevent and reduce The number of To reduce to…Management. violent crime and the violent crimes perfear of violent crime. 1000 population.Crime Detection. To increase the number The % of offences To increase to…of burglaries detected. detected per officer.Other important indicators include:● effective use of the budget;● the profile of the force – gender, ethnic minorities;● numbers deployed to operational posts;● effectiveness of estate and vehicle fleet management;● the number of volunteer programmes that are sustained, eg victim support, CSOinitiatives, safer schools programmes, etc.It is far more difficult to measure non-state policing, although perception surveys can alsobe used here.34 Safety, security and accessible justice

5. Accessible justice5.1 IntroductionPoor people enjoy access to justice when they are able to use institutions that are quick,relevant, and effective in meeting their legitimate needs. Justice systems that are remote,unaffordable, slow, or incomprehensible to ordinary people effectively deny them legalprotection.This chapter covers the elements of accessible justice through state and non-state means. Itemphasizes in particular the obstacles that the poor may face in securing just outcomes aswell as the types of strategic responses that may be developed in collaboration withgovernment and civil society partners.Poor people oftenface obstacles insecuring justice.5.2 The case for an interventionVision and objectivesIndividuals enjoy access to justice when a legitimate grievance can be resolved quickly andeffectively.The grievance may be against the government, a business, a private individual, ora member of the family. It may mean access to legal defence when accused of a crime, orhaving available the institutional resources to vindicate a legal entitlement to housing,schooling, or fair treatment at work. It may be available through a community leader ortraditional council rather than through the state legal system.An accessible systemenables grievances tobe resolved quickly andefficiently...Whether formal or non-formal institutions are used, they are accessible only when they arenon-discriminatory, and fair to the poor....and fairly.Box 5.1: Compulsory Mediation in ArgentinaIn 1995 the Government of Argentina introduced a scheme requiring litigants to see amediator before bringing a case to court. Parties were not required to reach a mediatedagreement, but were required to attend the first mediation session or face a fine of some$300. Only when the mediator issues a certificate testifying that mediation has beenattempted may the parties seek redress in court. Despite some teething problems, thescheme is widely regarded as a success, achieving agreement rates between the partiesof some 31% and substantially easing the strain on over-burdened courts.The realisation of accessible justice also requires inputs from civil society. It demandslawyers and other legal professionals who can deliver appropriate and affordable legalservices as well as CSOs that can raise legal awareness and bring representative courtactions. A functioning justice system requires the effective supply of justice services by stateand non-state entities as well as the expression of effective demand by people who trust thesystem enough to use it. Definitions of accessible justice vary from society to society.Theprimary focus must be on what the users of the system want. Box 5.2 suggests what themain elements might be.It requires a goodstate system, supportfrom civil society, andpublic trust.Safety, security and accessible justice 35

5. Accessible justiceBox 5.2: Elements of Accessible Justice●●Political independence of courts and other justice institutions: justice sectorinstitutions (whether state or non-state) free from political interference, with institutionalautonomy, and secure sources of funding.Just laws that accord with popular conceptions of justice and international humanrights standards. Mechanisms for identifying and revising laws that are outdated,discriminatory, or anti-poor in their effects.●Procedural rules that provide speedy, fair, and effective disposal of cases.●●●●●Robust institutions that are well managed, free from corruption, and effective indelivering services sensitive to the needs of the poor and other disadvantaged groups.Appropriate and accessible legal services provided by lawyers, paralegals,mediators, or traditional advisers, for accused persons and victims of crime as well asfor those involved in disputes over family relations, inheritance, land, unpaid wages,and so on.Legally accountable government with institutions (ombudsman, public complaintscommissions, human rights commissions) which provide the poor with a real hope ofredress if officials act in arbitrary or abusive ways. Judicial review available to publicinterest groups to check systemic abuses of power and raise matters of general publicconcern.Mediating civil society organisations that can help to formulate demands, conductadvocacy, and bring representative cases on behalf of low income or disadvantagedgroups.Legally literate citizens who have sufficient trust in the justice system to seekredress for legitimate complaints, and who have access to both the financial resourcesand institutional skills necessary to use the justice system to vindicate their rights.These elements interact and are to a large extent mutually dependent. So even if thejudiciary is institutionally strong and free from political interference, it will be unable toprovide effective remedies to the poor unless the laws are broadly appropriate to meettheir needs and there are NGOs or legal aid schemes capable of bringing suits ontheir behalf.Colonial law usually allowed only the injured party or an individual with a direct legalinterest to bring a case to court. In recent years countries such as India, Bangladesh andSouth Africa have liberalised the rules of standing so that anyone acting on behalf of anindigent person or group can bring a case to court.This simple change has greatlyimproved access to justice for the poor.Box 5.3: Public Interest Litigation in IndiaIndia’s public interest litigation movement began in the early 1980s, and has had a realimpact in addressing state violence, social oppression of women and low caste groups,environmental degradation, and bureaucratic inefficiency. A main innovation is the changein court rules to allow any citizen to file a case by writing to the court. Indian courts havepiloted the use of non-adversarial proceedings, and commissions of inquiry to report onmatters of common interest to the poor. Indian case law is now cited in courts around theworld, and can provide an important example for judges and lawyers in other jurisdictions.5.3 Towards an effective strategyAdopting a pro-poor approachOne of the problems with many justice sector reform programmes in the past is that theyhave often looked at the operation of the institutions from the perspective of officials36 Safety, security and accessible justice

5. Accessible justice(judges, government lawyers) or elites (business people, commercial lawyers) rather thanfrom the perspective of the poor. It is critical to the success of an SSAJ programme that theoperation of the institutions is understood from the bottom up.Understanding the stages of legal processIt is common for users to express their experience of the justice sector in general terms –“the courts are corrupt”,“laws serve the rich, not the poor” etc. It is important to gatherinformation on specific examples and actual experience. Users will quickly come up witha list of problems, but this may omit key issues and fail to create an analytical frameworkfor understanding the process. A more systematic approach is to think of the barriers at thevarious stages that an individual must go through in seeking a just outcome – see Table 5.1.The stages described – naming, blaming, claiming, winning, and enforcing – are indicativerather than comprehensive10.Table 5.1: The stages of accessing justiceStart by looking at thesystem from the users’perspective......and use a systematicapproach to get beyondsuperficial impressions.Naming: Blaming: Claiming: Winning: Enforcing:Identifying a Identifying a Staking a Getting rights Translatinggrievance as culprit. formal legal and legitimate rights intoa legal problem. claim. interests reality.recognised.An example from Criminal LawA village She blames the She works with The landlord is The landlord isseamstress is police sergeant the women’s group prosecuted, sentenced andraped by a for not in her church to tried, and imprisoned.local landlord. investigating contact a lawyer convicted. An order forShe files a the case. from FIDA who compensationcomplaint with will press for an to be paid tothe police. investigation and the seamstressThey fail to take prosecution to is compliedit seriously. take place. with.She knows thisis a violation ofher rights.An Example from Civil LawA washerwoman She blames She gets help from The court issues The dyeuses a stream the factory a public interest an injunction factory stopsfor drinking and owners, and lawyer who brings against the dye polluting thecooking water. the municipal a case in court factory to cease stream afterA new dye corporation as on her behalf. polluting the publicity infactory begins the public body stream. the local pressto pollute the responsible and a publicstream. She for preventing demonstrationknows this is harmful by marketan offence. effluent. women makesthe social costof noncompliancetoo high.10Michael Anderson (1999) “Access to Justice and Legal Process: Making Legal Institutions Responsive to thePoor People in LDCs” drawing on F. Felstiner, R. Abel, and A. Sarat (1981) ‘The Emergence and Transformationof Disputes: Naming, Blaiming and Claiming’ LAW AND SOCIETY REVIEW vol 15, p. 631 ff.Safety, security and accessible justice 37

5. Accessible justiceBox 5.5: More effective enforcement in SingaporeIn Singapore, stiff fines failed to deter companies from polluting common water resources.A statute was introduced allowing the courts to sentence company managers tocommunity service – collecting litter beside the road and in public parks. The communityservice orders, which involved a degree of public shame for business executives, were farmore effective in securing compliance.The legal system maybe simpler than it looks.Linkages with safetyand security arecrucial......linkages with nonstatesystems areimportant.Assessing the existing systemA strategic approach to accessible justice requires an understanding of the structure andoperation of the legal system.This may appear a daunting task – legal systems typically useintimidating technical vocabulary and procedures.The following points may help:● legal processes are relatively straightforward once a few basic concepts are understood.When in doubt, return to first principles and ask who are the main actors, what is theirrole, how do they go about their work, and what are the critical problems they face;● the checklist in Appendix 4 provides an indicative guide to the kinds of informationneeded to conduct an initial mapping of the system. (The list is not exhaustive, or asubstitute for the advice of legal consultants.);● draw upon the existing literature.The operation of the legal system is a matter ofconcern for both government agencies (Attorneys General, Law Reform Commissions,etc) and civil society organizations (eg Bar Associations, Human Rights NGOs).In most countries there will be official reports and other studies that describethe operation of many parts of the legal system, even if they do not adopt apro-poor approach.Linkages (see also sections 4.3, 6.3 and 6.4)A critical dimension of accessible justice is the way that it interacts with safety and security.Accessible justice depends upon safety and security as well as the efficient operation of thepolicing and prison systems. For example, if women feel that they are safe to venture intopublic spaces free from violence or harassment, they are more likely to have access tocomplaint mechanisms and other forms of redress. In turn, improved access to justice mayenhance the ability of individuals and communities to hold police and bureaucratsaccountable for abusive behaviour.There are also linkages between the state and non-state dimensions of the system.Wherethe state justice system provides effective protection of women’s rights, the non-statesystem is less likely to impose patriarchal family law rules in an unchecked manner. Andwhere non-state institutions can settle differences before they turn into disputes, the statecourts are less likely to be overloaded with litigation.Key linkages include:● where the courts rely on the timely presentation of effective evidence, are the policeable to supply it?● does a lack of co-ordination between police, prison service, prosecution, and the courts(for example in sharing information) cause delay?● do the rules of evidence allow the courts to take account of information gathered byinformal dispute resolution processes?Different situations needdifferent strategies.Identifying a change strategyThe right strategy to achieve accessible justice will depend on the political and socialcircumstances. For example, in a regime that implements discriminatory and authoritarianpolicies – such as South Africa under apartheid or many countries under military rule – a38 Safety, security and accessible justice

5. Accessible justicestrategy that focuses on containing human rights abuses by the state may be the mosthelpful to low income groups. In such circumstances, cooperation with state agencies maybe politically difficult for donors, thus favouring support to civil society groups. A differentstrategy is called for in a country with constitutional government, free elections and anindependent judiciary, but poor institutional performance as shown in long courtroomdelays and ineffective enforcement of judgments.There can be no single set of guidelines for developing an effective strategy, but it will beuseful to draw upon comparative experience and to identify the relationship betweenchange agents and the reform process.5.4 Planning and appraising an interventionApart from the usual caveats about building ownership, there are several specific points thatarise in respect of building partnerships with legal professionals:● access to justice may be a relatively new topic for DFID, but lawyers, judges, and legalpolicy-makers have been discussing it for decades. Concern about the effects of thejustice system on the poor has a similar history, despite the singular lack of effectivejustice for them.There will usually be studies or policies on aspects of the topic (forexample, legal aid);● most stakeholders in the legal system are likely to welcome DFID’s interest, and manywill find the SSAJ approach raises new questions and opportunities that have not beenpreviously considered.There may be a presumption that accessible justice means moremoney for courts and legal aid, so it is important to emphasize the strategic dimensionsof SSAJ – including the sectoral approach11, the emphasis on the poor, and theextensive involvement of civil society.Local justice sectorpersonnel are likely tohave given thought tojustice for the poor......and to welcomeDFID’s interest.Box 5.6: Paralegal ServicesA “Community-based Paralegal Movement” was created in South Africa with donor fundingduring the struggle against apartheid. These were barefoot lawyers who had one or moreyears university training but had not completed their degrees. They ran advice offices inareas where lawyers were inaccessible. They educated poor people about their rights;helped them to access state services (such as pensions, maintenance grants and officialdocuments); acted as a conduit for access to free legal services at public interest lawfirms; and provided mediation services and a lobby group for poor people’s rights. Theywere taken seriously by the government. They remain one of the few means by which apoor person can use the state courts. There are some 400 active members. But evenafter 15 years the government has not made a commitment to fund them, and theyremain dependent on donors.11Most judges and lawyers have not given serious thought to penal reform or community policing.Safety, security and accessible justice 39

5. Accessible justiceSee what has beendone to addressbarriers...Identifying relevant interventionsTable 5.3 suggests a number of possible interventions to address barriers which impedeaccess to justice.Table 5.3: Suggestions for removing Barriers to Accessible JusticeA. Legal frameworkProblem1. Outdated or biased laws laws –statutes and legal rules out of date,ineffective, or biased against poor.2. Ineffective implementation ofinternational standards – humanrights standards not incorporated intonational laws and procedures andhence unenforceable.3. Diffuse authority – unclear who isresponsible for enforcing particularrights and duties.4. Political interference.Possible solution● Support to CSOs engaged inproducing law reform proposals.● Support to the law reform commission● Engagement with government andparliament on reforms. See sec. 3.5(f).● Support for domestic implementationof treaties (esp. CRC and CEDAW)● Judicial training on human rights.● Support to CSOs engaged in humanrights litigation and activism.● Provide experts (eg paralegals) to helpidentify responsible agencies.● Promote legal literacy programmes tomake responsibilities known.● Support legal reform to remove overlappingor duplicate institutionaljurisdictions.● Support CSOs promoting rule of lawand human rights.● Support enhancement of judicialindependence eg by ring-fencingfunding and tenure of office.40 Safety, security and accessible justice

5. Accessible justiceTable 5.3: Suggestions for removing Barriers to Accessible Justice – continuedB Institutions of JusticeProblem1. Ineffective institutions – inefficient,under-funded, unco-ordinated.Possible solution● Support improved management andbudgeting.● Support for ministry coordinating bodyto deal with overall justice policy.2. Corruption – Judiciary or courtofficers (eg registrars) accept bribesto delay listing of cases or to rule infavour of highest bidder.●See sec. 3.5 (e).3. Delay: “Justice delayed is justicedenied” – court process slow andbadly managed with multipleadjournments.4. Inaccessible courts – too few, tooremote, too congested.5. Inappropriate legal procedures –poor alienated by complex or arcaneprocedures and rules, and use oflanguage other than the vernacular.6. Ineffective enforcement – agents(bailiffs, police) corrupt, inefficientand/or afraid to act against powerfulindividuals; officials unwilling or unableto carry out court orders; courts lackcapacity or inclination to superviseenforcement.● Support improved case managementsystems – court rule reform, training,record keeping.● Computerisation of courts.●Creation of local courts, small claimscourts, and other courts.● Support for state and non-statealternatives to courts (see below).● Support for use of vernacular in thecourts.● Support for reform of overly technicallegal rules.●●Support for more creative andeffective enforcement measures (seebox 5.5).Programmes to involve civil society(including the media, CSOs, andNGOs) in monitoring the enforcementof awards.7. Lack of alternatives to courtswithin the state system – lack ofsupport to arbitration and mediation;rigid legal rules requiring litigation.●●●Support to ombudsman schemes tomonitor enforcement.Modify court rules to encourage pretrialmediation or arbitration.Support to pre-trial diversion measures.Safety, security and accessible justice 41

5. Accessible justiceTable 5.3: Suggestions for removing Barriers to Accessible Justice – continuedC. Civil societyProblem1. Unawareness, powerlessness –people not aware of their rights, orregard them as unenforceable againstthe strong.2. Inaccessible legal services – toofew lawyers/paralegals; accessdifficult eg for prisoners or those inremote areas.3. Lack of non-state alternatives forpreventing and resolving disputes– traditional systems biased eg infavour of men, the rich, dominantethnic group; inadequate linkagesbetween state and non-state sectors.Possible solution● Encourage class action/public interestlitigation on name problems affectingvulnerable.● Promote legal literacy programmes –posters, pamphlets, radio etc● Use local notions of justice in pressingthe claims of the poor and vulnerable.●●●●●●●Support to paralegal services,university law clinics, communitylaw centres.Change university law training toemphasise paralegal and probono work.Support to ombudsmen, publiccomplaints commissions, and othernon-judicial forms of redress.Human rights and gender awarenessraisinginitiatives in existing nonstatesystems.Support to community initiatives toestablish alternatives to state courts(eg street committees, communitycouncils, etc.).Law reform and training of judges toenable recognition of decisions by nonstateentities.Support liaison between state and nonstateinstitutions in the justice sector.In selectinginterventions considerpriorities, sequencing,dependencies and costeffectiveness.Technical appraisal of possible interventionsAs Table 5.3 indicates, there are many possible interventions. In evaluating them, relevantfactors to consider include:●●●●●What are the main barriers to accessible justice in this context, and which interventions mightaddress those barriers?Are there sequencing issues to consider? For example, there is no point enhancing thesupply of legal services through legal aid if the judges are corrupt; judicial corruptionwould have to be tackled first.Will the proposed intervention become effective independently or does it depend on otherinterventions? Eg it is no use training judges in criminal case management if they stillhave to rely upon poorly prepared and dubious evidence presented after years of delay.Simultaneous programmes may be needed for the courts, prosecution and police so thatall three become involved in the production and timely use of good-quality evidence.Can the same end be achieved through another intervention of lower cost and higher long-termbenefit to the poor? It may be cheaper and more effective to support community councilsto resolve land disputes than to tackle the compounded problems of outdated laws,corrupt court administrators, high lawyer costs, and years of delayed litigation.Will the intervention actually improve accessible justice for the poor? Some interventions(eg many types of judicial training) may have no demonstrable effect on the operation42 Safety, security and accessible justice

5. Accessible justice●of the legal system at all. Others (eg improved court libraries, case management incommercial disputes) may enhance the general operation of the justice system, but havefew tangible benefits for the poor.Does historical and comparative experience suggest that the initiative is likely to be effective?Many initiatives in the justice sector have not been subject to careful monitoring andevaluation. Nevertheless, comparative experience can be useful in identifying potentialstrengths, weaknesses, and unintended consequences.The Governance Resource Centrewill be able to answer queries.Responding to requests for assistanceCertain requests are common in the legal sector, and should be evaluated carefully despitethe enthusiasm of stakeholders:Legal aid schemes maynot be sustainable...Support to legal aid. Increasing support for legal aid is a popular proposal among thosein the legal sector who work with the poor. Legal aid is an important component of anylegal system, particularly since governments are required by international human rightsstandards to ensure that accused persons have effective access to legal representation.Yetcomparative experience shows that legal aid can be both expensive and unsustainable. Inmany cases there will be more cost-effective ways to improve legal services to the poor(see box 5.7).When evaluating proposals on legal aid, bear in mind that there are manydifferent types of legal assistance schemes in operation, and that the supply of legal servicesshould be considered for civil cases as well as criminal trials.Box 5.7: Cost effective and sustainable legal aid in TanzaniaUnder the Tanganyika Law Society Ordinance, every advocate in mainland Tanzania isrequired to accept legal aid briefs assigned by the Society. The scheme applies to civilcases only, and is cost-free to the state since in such cases the advocate is entitled tocosts if the case is won, but is paid nothing if the case is lost. The winner-take-all-losertake-nothingapproach increases the incentives for advocates to put their best efforts intowinning plausible causes while discouraging clients from pursuing frivolous claims.Judicial training. Stakeholders are accustomed to donors supporting judicial training andother types of legal education. A critical question is what real impact this may have for thepoor. In general, there is a presumption against support for judicial training abroad, ortraining for the highest levels of the judiciary on its own, unless it serves a specific strategicpurpose. Provision of in-country training in the lower courts on topics and processesdirectly relevant to the poor is likely to be more cost effective....and training judgesmay not be the bestway of helping thepoor...Support to “traditional” justice. A thorny issue to be addressed is how to engage withtraditional systems of justice to make them more accessible and appropriate. Given thepatriarchal nature of many, but not necessarily all, traditional systems, fair treatment forwomen and children becomes the big challenge once there is a constitution in place thatsupports equality principles.The really difficult strategic consideration is how to engageconstructively with traditional systems so that the good of the systems – the combinationof social support and social control – is not lost in the process of change....traditional systemshave deficiencies aswell as good points.Safety, security and accessible justice 43

5. Accessible justiceData generated formonitoring andevaluation can help withpolicy formulation too.5.5 Monitoring and evaluationGood quality empirical information on the operation of justice sector institutions is oftenlacking. Crime statistics and court case-load information may be unreliable or evenunavailable. A programme that generates such basic information may contribute to policyformation as well as monitoring and evaluation objectives. Some typical indicators are setout in the table below:Goals OVIs MOVsInstitutions are well- Strategic Management ● Institutional Reports.managed and efficient in plans are in place and ● Field visits.achieving stated goals. operational.Legal processes are Perceptions of corruption ● Public perceptionefficient and free of and efficiency improve. surveys.corruption.● Lawyer perceptionsurveys.Cases move efficiently Case management Reports and visits.through the system. techniques in use.Cases are decided fairly Percentage of cases Case reports.without discrimination decided in favour ofagainst the poor.women increases.Criminal cases are Number of person-years of Prison reports.processed quickly. prisoners awaiting trialdeclines.44 Safety, security and accessible justice

6. The treatment of offenders and penal reformAn effective penal system should help to prevent crime by deterring potential offendersand rehabilitating those who are caught. It should respect human rights. And it should usecheaper and more socially effective alternatives to imprisonment for minor offenders andthose awaiting trial for lesser offences.6.1 IntroductionThis chapter discusses approaches to the issues associated with the treatment of offenders. Itrecommends an approach that encompasses the functioning of the criminal justice system,the prison service and the police.Much of the discussion centres on the use of prisons.This is because they are over-usedas a sanction by justice systems in many developing countries in ways that aredisproportionate and discriminatory.They are also largely ineffective in deterring crime orrehabilitating criminals and thus have serious impacts on society.The case against prisons,for all but serious offenders, is based not just on the violation of the human rights ofprisoners.The over-use of imprisonment is part of the failure of states to provide aneffective justice system.The treatment ofoffenders is oftencharacterised by theover-use ofimprisonment...6.2. The case for an interventionIneffective treatment of convicted offenders and those accused of crime, relying mainly onimprisonment, contributes to insecurity and hampers development, discriminates againstthe poor, and is of serious concern on human rights grounds:● in many countries over 70% of the prison population is awaiting trial, and the majorityof convicted prisoners are being held for relatively minor offences which could be dealtwith more effectively in other ways. Convicted prisoners often re-offend. Mostprisoners are young men from poor families. It is very unusual to find rich peoplein prison;● the socio-economic costs of imprisonment include preventing people from contributingto their local economies. Families not only lose the labour of their imprisoned relativesbut may also have to find resources to help support them in prison;● prisons are expensive, using scarce state resources which could be put to better use instrengthening other parts of the justice system;● prisons harbour serious health hazards such as TB and HIV which they export to thewider community;● young people in prison are often subject to abuse and exploitation by guards andadult prisoners.Although overused12, prison does remain an important sanction against offenders fromwhom society is genuinely at risk, such as those convicted of serious and dangerouscrimes. If these prisoners are not to pose a future threat it is important that prisons seek torehabilitate them and reintegrate them into society. Most developing countries spend verylittle effort on rehabilitation and re-integration and concentrate only on warehousinginmates....which contributes toinsecurity, discriminatesagainst the poor......is expensive......and createsreservoirs of disease.Where prison isappropriate,rehabilitation isimportant.12However, several developing countries have relatively small prison populations, due to the general inefficiency oftheir justice systems particularly as regards securing convictions.Safety, security and accessible justice 45

6. The Penal SystemProblems oftenoriginate in other partsof the system......public and politicalresistance to reformneed to be addressed...6.3 Towards an effective strategyA strategy to address the treatment of offenders and contribute to crime prevention usuallyrequires a multi-dimensional approach.Weak linkages, for example where responsibilitiesfor prisons and criminal justice are split between two ministries, can lead to incoherent andineffective policies and increased cost. Problems can arise from weaknesses in another partof the system; for example prison overcrowding can result from delays in court proceedings(long remands) or poor sentencing policy (imprisonment for minor offences). Externalactors can play an important role in analyzing these weaknesses and improving dialoguebetween different parties.A strategy will also have to take into consideration political will and public opinion.Themost common response to problems within the penal system from both the general publicand politicians is “build more prisons – get tough on criminals”, with resistance to reformswhich improve conditions and reduce the prison population.Ways of containingopposition and building support for penal reform include:● public education;● highlighting the cost-benefit and effectiveness of alternatives to prison;● highlighting public health risks;● bringing allies on board, such as prison officers who often experience appallingconditions themselves;● evidence from evaluations of existing penal policies.Depending on the local situation, the key objectives of an intervention will usually involvestrengthening the justice sector to:● provide alternatives to imprisonment for minor offenders;● reduce the incidence and length of pre-trial detention;● improve prison conditions;● rehabilitate offenders.The key questions are set out at Appendix 5....government/thejudiciary need to keepsentencing practicesunder review...Alternatives to prisonRevision of sentencing policy by the responsible ministry, in conjunction with ‘justicecluster’ ministries, is a good start. Systematic and prompt reviews of sentencing practicecan ensure that lesser offenders are not sent to prison if more appropriate penalties areavailable. Most alternatives fall into the following categories:● fines;● compensation to the victims;● suspended sentences;● parole;● community service sentences;● diversion projects (mainly for juveniles).Note that a formal probation service can be expensive and probation officers may not bereadily accepted in some societies. Alternative ways of organising supervision within thecommunity can be explored, for example supervision by local councils, the village headman,community paralegals, mediators, or someone else in a position of respect and trust.The courts’ failure to use existing alternatives may be due to unawareness, lack ofconfidence in them, or lack of a clear sentencing framework. Research also suggests that46 Safety, security and accessible justice

6. The Penal Systemalternatives may simply be used as alternatives to each other, rather than to imprisonment.The use of sentencing guidelines and the training of judicial officers and prosecutors in therange of sentencing options available can encourage more use of alternative penalties.Box 6.1: The use of sentencing guidelines in ZimbabweThe place of community service in the sentencing framework in Zimbabwe has been madeclear by a series of judicial guidelines. It was decided by the judiciary that communityservice should be used only for those offenders whose offence could attract a prisonsentence of one year or less. However, it soon became clear that there was no consensuson equivalencies – magistrates did not know how to convert x months in prison to hours ofcommunity service. A working party was therefore set up to draw up some guidelines. Theguidelines also set out the steps magistrates should follow before making a communityservice order.Reducing pre-trial detentionTypically around 70% of the prison population is made up of prisoners awaiting trial –many of them for relatively minor crimes for which remand in custody may beunnecessary. Sluggish courts and/or poor record keeping can result in these prisoners beingheld for unacceptable periods: it is not uncommon for them to get ‘lost in the system’ andspend years in jail on remand.Reducing pre-trial detention will simultaneously reduce overcrowding, free up resourcesto deal more effectively with sentenced prisoners, create opportunities to engage inrehabilitative efforts on sentenced prisoners, and improve the image of the justice system.It may therefore also be the best place to start interventions, as it can be achieved withina relatively short period of time with relatively few resources....reducing pre- trialdetention is usually themost importantstrategic intervention.The range of strategies includes:● reforming and updating the bail system;● increasing access to legal advice;● closer judicial oversight, particularly with a team of dedicated inspecting judges;● accurate record keeping of those awaiting trial;● the use of para-legals to review the cases of those in jail awaiting trial;● joint police/prison action to improve the transportation of prisoners to court(including special mobile cells);● measures which enhance the ability of police to collect evidence needed for trial.Box 6.2: Camp courts in IndiaIn India special ‘Camp Courts’ are held inside prisons. Judicial officers pick out small timeoffenders and give them speedy justice. This is seen as a useful way to reduce overcrowding,speed up justice delivery and restore the ‘hope’ factor in the life of prisoners.Bail systems requiring payment naturally discriminate against poor prisoners who are oftenunable to raise their own bond. An alternative is a bail system which does not requirepayment, but makes offenders periodically report to police stations. Authorities can bereluctant to make greater use of bail or reporting systems if long delays in bringing thecases to court would create the impression amongst the police, public and victims thatjustice is not being done.This again highlights the importance of a sector wide approachSafety, security and accessible justice 47

6. The Penal Systemwhich simultaneously improves court performance.There may also be a need to changepublic perceptions.Box 6.3: Community involvement with bail hearings in South AfricaIn South Africa local residents, through their community policing fora, are encouraged tohelp the courts decide on the danger of an accused person to the local residents duringbail procedures. In countries where mob justice is widespread, many ordinary people donot understand the notion of bail; even less so when it appears the offender is never triedfor the original offence. This relaxation of procedure includes the community in theprocess and reduces the risk that the offender will be dealt with summarily if released.As discussed in chapter 5, many cases not involving serious or dangerous crime can bediverted from the formal criminal justice system altogether. Other options include the useof alternative dispute resolution, restorative justice and traditional justice systems. Divertingyoung offenders from the courts is an increasingly favoured strategy in juvenile justice.Don’t overlook theneeds of staff whenhelping to improveprison conditions......and aim for more selfsufficiencythroughbetter management......use of resources,human as well asphysical.Open prisons arecheaper as well asmore salubrious...Improving prison conditionsIn a resource scarce environment it is important that any strategy to improve prisonconditions aims for self-sufficiency so far as is practicable. Often it is not only theprisoners, but also the prison staff, that have to endure poor conditions. It is important thatthis is taken into consideration.Possible approaches include:● better prison management (at all levels) and training of prison staff and managers;● encouraging self-sufficiency where prisons improve the use of existing resources suchas land or workshops;● training prisoners and using prison labour for prison maintenance and works, both toreduce costs and to help the prisoners learn a trade.This approach can also help toenhance security as it is now generally acknowledged that prisons run more safely andpositively with the cooperation of prisoners;● converting institutions into low-security or ‘open’ prisons. 40 years’ experience in Indiahas shown that open establishments are cheaper to run, require less infrastructure andcan be managed by fewer staff, as prisoners earn money and can cater more for theirown needs. Open prisons have lower escape rates than closed ones.Possible approaches to improving the health of prisoners are linked to other actions toimprove conditions, and include:● improving basic sanitation;● training prison staff in preventative and primary healthcare;● improving prison rations eg through the use of prison farms.48 Safety, security and accessible justice

6. The Penal SystemBox 6.4: TB in former Soviet Union prisonsIn Russia and elsewhere prisons have become a breeding ground for TB due toovercrowding, lack of fresh air, poor hygiene, inadequate health care and nourishment aswell as poorly trained staff. Prisoners have much higher rates of TB than the population atlarge: eg Kazakhstan with a population of 17.2 m has a TB infection rate of 66:100,000;but the rate for the 77,000 prisoners is 21,000:100,000 – over 300 times as high....unhealthy prisonersare a risk to the widercommunity.The Pavlodar Project was designed to deal with the problem. It recognised thatimprovements in drug supply and treatment monitoring were pointless withoutimprovements in living conditions, and that living conditions would remain poor so long asprisons remained overcrowded. The project has three elements: staff training; TBtreatment; and promotion of alternatives to imprisonment. It included grants to rehabilitateprison establishments. The training element has positively influenced the TB element,changing the attitude of the staff which is reflected in their treatment of prisoners.Activities relating to alternatives to imprisonment are being developed.Vulnerable groups in prison include women and children, foreign nationals and thementally, terminally ill and drug dependent.Re-integration and rehabilitationEven if all of the above approaches were introduced, prisons in most parts of the worldwould still fail to re-integrate and rehabilitate offenders.The process of moving towardsrehabilitation and re-integration does not have to be an expensive one. People are sent toprison as punishment, not for punishment. Prisoners should be kept busy with meaningfulwork for the prison and for the state. In South Africa for example, prisoners make all thecivil service office furniture. Elsewhere, many prisons are self sufficient in food production.Skills transfers and literacy training can also be introduced relatively cheaply. In SouthAfrica also, conflict reduction training of prisoners and prison staff has been highlysuccessful.Rehabilitation andreintegration arecheaper than recidivism.6.4 Planning and appraising an interventionResponding to requests and entry pointsRequests are commonly for additional resources to the system, for example to increaseprison capacity or to improve prison infrastructure and enhance security measures. It goeswithout saying that the provision of additional resources in an environment of poor policyand inefficient management is unlikely to be sustainable. However, requests can providea good entry point for exploring some of the wider policy issues and linkages in thesector. For example a request for more prison buildings can prompt consideration ofovercrowding and actions needed in other parts of the justice system.Use requests for moreresources to start adebate on reform...In evaluating requests other than for additional resources, it is important to consideralternatives. For example, if reducing the number of remand prisoners is the favouredintervention, is that more important than supporting alternatives to prison? Reducingprison populations by reducing numbers on remand is good for prison management (andits budgets); it forces the police and courts to speed up trials, getting witnesses and theaccused to and through the courts; it promotes swift justice, with all the spin-offs on publicappreciation, victim satisfaction and greater symbolic messages about the certainty andspeed of justice; and it provides some politically profitable “quick wins”. But it does notaddress the most strategic and problematic question facing prisons, namely the failure tore-integrate or rehabilitate offenders. (No country has a recidivism rate below 65%.) Allthe relevant factors, including donor staying power, have to be considered at the time ofthe request.Safety, security and accessible justice 49

6. The Penal System...private prisons maynot be the right answerPrivate prisons Some countries are inviting proposals from private companies to set upnew private prisons.There is evidence for and against private prisons. In South Africaprivate prisons have successfully improved prison conditions. In others however they havenot.The main perceived disadvantage of private prisons is that they may create (as inthe US) a new and possibly powerful vested interest keen on making more use ofimprisonment.6.5 Monitoring and evaluationExamples of OVIs for prison reforms include:● percentage of remand prisoners: time it takes for a case to be processed to disposal(including appeal);● the use of bail processes (police and courts);● numbers of juveniles in custody and type of offence;● deaths in custody, medical conditions (scabies, bloody diarrhoea,TB and other curablediseases);● the number of human rights violations in prisons reported;● improvements in prison diet and in access to recreation, education and work;● refresher courses for prison staff (short modules repeated in situ through the year arepreferable to one-off or centralised courses);● the numbers of regular visits by judicial officers and NGOs/ religious groups;● internal audit recommendations.50 Safety, security and accessible justice

Appendix 1“Justice and Poverty Reduction”, DFID Issues Paper,December 2000Introduction1. In its White Paper Eliminating World Poverty:A Challenge for the 21st Century13 theGovernment recognises that poor people, particularly women, are the most vulnerableto all forms of crime and civil conflict, including domestic violence; and that in verymany cases, formal justice systems fail to protect them.2. In the Strategy Paper Making Government Work for Poor People14 DFID recognises thatin order to meet the International Development Targets for poverty reduction, it isnecessary for governments to develop the capacity to ensure safety, security and accessto justice for all.3. Those papers set out DFID’s broad policy on safety, security and accessible justice.Thispaper focuses more closely on the importance of justice systems for improving the livesof poor people, and the contribution which DFID can make15.4. The objectives of safety, security and accessible justice strategies are:● to make all people safe from violence and intimidation in their communities,homes, work and schools;● to make people’s property secure from theft and damage; and● to ensure that everybody has access to systems which dispense justice fairly, speedilyand without discrimination.5. These objectives have been identified by developing countries as priorities within thePoverty Reduction Strategy Paper process. DFID is ready to support governments in poorcountries to realise these objectives. Our approach is inclusive of all people but givespriority to the problems of poor and disadvantaged people.Why safety security and accessible justice matters6. While the cost of crime and its control is equivalent to 5% of GDP in the developedworld, the figure rises to 14% in developing countries16. Poor people suffer more fromcrime. In South Africa for example, the victims of crimes of violence arepredominantly poor people17.7. The impact of crime on poor people is more serious.The reason is that when you havevery little, losing what you have can bring with it real catastrophe.The theft of a bicyclecan mean the loss of livelihood for the owner. Poor people also face real barriers inseeking the protection of the state.The police often abuse their powers and actoppressively. Courts are usually distant, expensive, and use procedures which aredifficult to understand. Corruption is often widespread.13November 1997.14June 2000.15Earlier Policy Statements, Conflict reduction and humanitarian assistance and Poverty and the security sector,deal respectively with DFID’s role in relation to war, civil war and natural disasters, and in relation to themilitary, paramilitary and intelligence services. References to “safety and security” in this Policy Statement referto the mainstream justice sector (see footnote 8 below for a definition).16International Centre for the Prevention of Crime (1999).17Shaw and Louw: Crime in Post-Apartheid South Africa: Extent, Impact and Responses, Institute for SecurityStudies (1998).Safety, security and accessible justice 51

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000Box 1: Voices of the Poor“If a poor man is beaten by a rich man and goes to file a case against the rich man, theofficer concerned does not even register the case.” – BangladeshRecent participatory exercises, including the World Bank’s 1999 Consultations with thePoor, which involved 20,000 poor people at 468 sites in 23 countries, have confirmedthat safety, security and justice issues, and in particular insecurity caused by crime, are amajor concern for poor people, ranking in importance with hunger, unemployment andlack of safe drinking water.One striking finding in Consultations, was the extent to which the police and otherauthorities side with the rich and victimise poor people. There was astonishing consistencyacross communities in the negative impacts of the institutions of law and order on thelives of the poor. The police were the subject of many complaints, being perceived as lax,corrupt and often brutal. Poor women had added concerns about domestic violence andsexual abuse, and about the fact that these matters were often not taken seriously bythe authorities.8. Failure of states to provide protection from crime and access to justice impedesdevelopment. All people have a right to go about their lives in peace, free to make themost of their opportunities.They can only do so if the institutions of justice and lawand order protect them in their daily lives. Poor farmers cannot be expected to investin livestock or the cultivation of cash crops if their animals and produce are likely to bestolen.They are less likely to spend time and money improving their land if there is noway of resolving land disputes fairly.9. States with poorly functioning legal systems and poor crime control are unattractive toinvestors so economic growth also suffers.The World Bank points out18 that crime andviolence have emerged in recent years as major obstacles to development objectives –“Where crime is significant, we see economic growth down by 1-2 per cent”19.Programme design10. The design of programmes to improve safety, security and access to justice is theresponsibility of governments working with civil society. DFID will supportgovernments to develop programmes through:● Consultation: The starting point should be to consult all the interested parties –and not least the poor and vulnerable themselves.What do poor people see as majorsafety and security issues? What do they think of the justice system, and in particularwhat do they see as its main deficiencies? What are their priorities for reform?Governments need to understand how vulnerable poor people are to crime andviolence, including abuse at the hands of the police; what access they have to boththe formal and non-formal justice systems and how they find them; how aware theyare of their legal rights and whether they have access to legal advice andinformation.● Sector-wide assessments: Diagnosis is essential.The analysis has to be sectorwidein approach20 in order to identify the linkages between the different parts ofthe system. For example, improving the efficiency of the police may lead to the18A World Bank study of local entrepreneurs in sixty-nine countries found that states with ‘high levels of crimeand personal violence and an unpredictable judiciary’ are not credible with investors.19Crime and Violence as Development Issues in Latin America,World Bank (1998).20The “sector” can include: customary and traditional justice systems, judiciaries,“modern” alternatives for disputeresolution, legislatures, law commissions, other (e.g. human rights) commissions, the police, prison andprosecution services, agencies responsible for non-custodial sentences, lawyers, paralegals and Civil SocietyOrganisations/NGOs active in the field.52 Safety, security and accessible justice

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000●arrest of more suspects, but with an unreformed remand system and sluggish courtsit will also lead to bigger court backlogs, longer remands and worse overcrowdingin prisons.Collaboration between donors and governments: Development assistancewill be more effective if it is organised to support a coherent set of objectives andpolicies to which the government is committed. Donors should where possiblepool resources to finance implementation of sector-wide reform, where there issufficient local commitment to this objective.11. In Uganda, a new initiative is underway which demonstrates this approach.Box 2: Legal Sector Reform, UgandaThe Government of Uganda is planning the world’s first sector-wide approach tojustice/law and order reform.The initiative is a result of extensive consultation. The World Bank’s Participatory PovertyAssessment, together with the Government’s Poverty Eradication Action Plan, showed howthe criminal justice system was failing to provide an adequate service, particularly to thepoor. Earlier efforts to reform the commercial justice system are accordingly beingdeveloped into a sector-wide approach starting with criminal justice reforms.The Government has proposed a multi-agency, multi-donor partnership to develop astrategic plan for the sector. A Sector-Wide Budget Framework Paper has been producedby a working group consisting of representatives from all the institutions in the sector.These include the police, prosecution, judiciary, prison service, Ministry of Justice, Ministryof Internal Affairs, Law Reform Commission and Judicial Services Commission. This wasfollowed by a joint sector statement to the Consultative Group of donors. Both documentsemphasise that the developing sector-wide approach is necessary for successful reformand to prioritise financing.Various donors including the Netherlands, Ireland, Norway, Sweden, Austria and the UK arecollaborating with the Government in the preparation of the criminal justice sectoral reformprogramme. These donors will provide financial support to the development of a strategicplan through a consolidated fund. It is intended that this will lead to more substantivecollaboration and budgetary support to the sectoral reform programme once established.12. The following sections describe the challenges facing governments and the kindof actions they can take to improve firstly, safety and security and secondly, accessto justice.Improving safety and security13. The lack of safety and security directly affects the welfare of poor people. It can causeinjury and death, reduce family income and generate a climate of fear. Improving safetyand security involves measures to prevent crime, as well as responding effectivelywhen it happens. Communities, the police and other agencies all have to be involvedthroughout.I. Crime Prevention14. Crime prevention is up to eight times more cost-effective in reducing crime thanreactive measures21. Prevention means reducing the opportunities for crime, forexample through neighbourhood watch schemes. It is also about addressing the riskfactors such as youth unemployment, or the availability of firearms and drugs. Effectivebasic services including housing, education and health can also help to tackle the21Work Programme of the National Crime Prevention Centre, South Africa Department of Safety and Security.Safety, security and accessiblee justice 53

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000underlying causes of crime and violence. Partnerships are needed between the policeand other agencies.The involvement of municipal authorities, for example in safer cityprojects can be crucial.Box 3: Urban safety and security, JamaicaPoor people’s access to physical security, police protection and justice has completelybroken down in parts of urban Jamaica which are under the control of armed gangs.Making urban communities safer has been a priority issue for the Jamaica Urban PovertyProject, supported by DFID.The project is being piloted in Jones Town, a deprived inner-city district in Kingston. Thepolice acting alone have not been able to provide law and order. Agencies outside thecriminal justice sector have therefore been asked what they can do to help prevent crime.Examples of actions taken by these agencies include:●community farm projects for urban youth;●inter-community sports festivals to strengthen peace initiatives between rivalcommunities;●improving streetlighting in crime-vulnerable areas;●●putting up street signs so that when the police need to get to a troublespot quickly theycan find it easily;homework classes for children so they can do their homework under supervision,in a quiet and safe environment.In the first year of the project, the rate of violent crime has been cut by 37%. Residentperception studies have shown that women and children feel safer to walk the streetsagain, local business activity has improved, there is increased demand and investment inhousing and a more trusting relationship with local police. As a result, the project has nowbeen rolled out to ten other inner-city communities.15. Effective prevention requires effective policing: when the police offer no realdeterrence, crime prevention strategies are also likely to have limited impact.II. Community policing16. Community participation is often key to effective policing.The people who live andwork in an area are best placed to identify the problems facing them and possiblesolutions to those problems. Community policing initiatives, which providemechanisms for consultation and co-operation between the police and the public,have been shown to help tackle rising rates of crime.54 Safety, security and accessible justice

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000Box 4: Community policing, MalawiA police reform project in Malawi aims to improve safety and security, especially for therural poor. Its purpose is to use community policing initiatives to prevent and reduce crimeand the fear of crime. The principles supporting this process include regular localconsultation between the police and the community, joint problem solving and joint action.Examples of project activities include:●the training of community police officers;●●the establishment of community policing pilot sites to test and design a nationalcommunity policing model;the establishment of community/police consultative groups to identify concerns andpolicing needs as well as to provide a police accountability mechanism;●●establishing linkages to traditional community systems e.g. village heads;the implementation of joint police/community patrols;●the establishment of local crime prevention panels and joint police/communityapproaches to the prevention of crime.During a recent review villagers at two pilot sites indicated that crime and the fear ofcrime had been reduced and relations with police had improved. As one village head mansaid “we are now able to sleep at night without the fear of harassment”.17. Community policing is one model of policing which offers the scope for positivechange. However broader conditions underlie the formation of a professional,independent police service working on behalf of society as a whole.III. A professional police service.18. Given the risks that the police will abuse their powers, issues of transparency andaccountability are as important as issues of efficiency and effectiveness. A professionalpolice service is built on the following elements:● adequate budgets and safeguards from improper political interference, so that thepolice can be held accountable for their performance;● investigative skills and equipment so that the police can build cases on evidencerather than on confessions;● relevant and practical human rights training to improve police treatment ofvulnerable groups;● effective accountability systems and redress mechanisms such as independentcomplaints commissions, ombudsmen and civil society organisations representingthe public in their dealings with the police.Safety, security and accessiblee justice 55

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000Box 5: Improving safety and security, BangladeshA justice sector-wide assessment in Bangladesh emphasised the need to improve theprotection of poor people by the police. This led to the design of an initiative designed toimprove policing at the local level. This focus offers an entry point to begin addressingproblems in the justice sector more widely.The project involves: (1) community participation in policing at the local (Thana) level; and(2) strategic reforms in the Bangladesh Police Service designed to make it more serviceorientated.Project activities include:●the use of public attitude and user surveys to generate public awareness and improveaccountability;●●joint police-public problem solving on issues such as victim support;establishment and/or strengthening of police community forums;●●the use of an Accessible Justice Fund, open to government and non-governmentorganisations, for local level innovations or national strategic initiatives;training and technical assistance to enhance police capacity for data collection,research, and policy analysis.The success of this initiative will be monitored through public perception surveys or ‘reportcards’ on policing in the pilot Thanas.19. Police treatment of vulnerable groups is another important aspect of safety and security,including the extent to which they protect women and children against domesticviolence and sexual abuse. A project in Jordan seeks to address these issues.Box 6: Family protection, JordanThe Family Protection Project aims to combat domestic violence, child abuse and sexualassault. One of its objectives is to improve police treatment of victims. It does thisthrough:●●●a programme to sensitise the police and to mainstream a victim-centred approach tofamily violence in all its forms;discussions to agree common definitions of sexual abuse, child abuse and domesticviolence;the establishment of a model Family Protection Unit (the first of its kind in the Arabworld) within the police;●●●the creation of “at risk registers” to alert police and others;the use of systems to ensure that victims receive sensitive treatment;the implementation of joint-agency training for the police and others;●an ongoing information campaign to raise social awareness about family protectionissues.Early indications are that the model Unit has encouraged more women to report incidentsof domestic violence. In its first 20 months of operation, the Unit received 762 caseswhich represents a 60% increase in the number of domestic violence cases reported.56 Safety, security and accessible justice

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000Improving access to justice20. Access to justice means that where people do need help, there are effective solutionsavailable. Justice systems which are remote, unaffordable, delayed, or incomprehensibleto ordinary people effectively deny them legal protection.21. In developing countries the law is often discriminatory and legal processes areexpensive, slow and complex.The result is that people, and particularly poor people,have inadequate and unequal access to justice through the formal legal system. Forthese reasons, they tend to rely much more on customary justice systems, but these canbe discriminatory. Improving access to justice requires that both formal and customarysystems be made to work justly and equitably.22. Improving access to justice also means more than reforming legal procedures. It canalso mean law reform, making courts more user friendly, improving customary systemsand improving the treatment of offenders.I A fair and equitable legal framework23. There can be many reasons why poor people are unable to use the law to obtain theprotection to which they are entitled. Sometimes laws are not framed in their favour.For example, in South Asia many laws contain provisions which discriminate againstpoor people and/or women.They were not designed to enhance governmentaccountability or promote citizen rights. Poor people are unlikely to know what theirrights are or be able to pay for legal advice or representation. Actions to improve thelegal environment for poor people include:● law reform which removes discriminatory provisions and incorporates rightsconforming with international standards;● promoting the use of public interest litigation by advocacy groups and others tochallenge the legality of discriminatory government measures;● paralegal schemes offering assistance and advice;● improved access to legal aid so that poor people can afford legal representation;● practical, problem-based legal rights education which helps poor people to protecttheir livelihoods.II Courts which are accessible and dispense justice speedily24. Courts are often inaccessible.They are usually located in towns away from the ruralpoor and use languages and procedures which are difficult for them to understand.Many are run inefficiently. Criminal cases can take years to proceed from arrest to trial.The sheer volume of cases pending across the system can bring it to a state of nearparalysis. Courts can be made more accessible and provide a better service through:● the use of local languages;● allowing people to give evidence in narrative form;● appointing people from the community to sit as lay magistrates;● establishing mobile courts to service rural communities;● providing information about the courts to the public;● improving case-flow management by computerisation of court records andstrengthening court administration;● awareness raising for judges in new developments affecting juvenile justice,alternatives to prison etc.;● better co-ordination between courts and other agencies (see box).Safety, security and accessiblee justice 57

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000Box 7: Improving access to courts, UgandaIn Uganda, the logjam of cases in the courts constitutes a major obstacle to poor people’saccess to justice. Delays in administering justice are chronic. For example, in onemagistrate’s court over a nine-month period, only a single case was disposed of.The Government initiated the “Chain Linked” programme in Uganda, which aims to cutdelays in the Masaka Magisterial Area. The programme is supported by several donorsincluding DFID.Ineffective communication and coordination between the criminal justice agencies is themain cause of delay. Now a Case Management Committee comprising senior localrepresentatives of the various agencies, such as police, probation, prosecution, prisons,magistracy and judiciary, meets on a monthly basis. It identifies causes for delay inspecific cases, agrees solutions with the institution concerned and monitorsimplementation and impact of the agreed action.Action taken to cut delays includes:●●●●better control of case files;statistical reports to identify bottlenecks;trials held on consecutive days to reduce adjournments;steps to encourage better witness attendance.In the first year, the number of cases disposed of has tripled and the project will now berolled out nationally.III Improved customary justice systems and a greater role for alternativedispute resolution25. In many developing countries, traditional or customary legal systems account for 80%of total cases.They are usually better attuned to the needs of local communities.However, the danger is that such systems do not always protect the rights of the poorestand most vulnerable members of society.26. Customary justice systems will work more effectively if measures are taken toencourage:● customary systems to operate more fairly e.g. by providing paralegal representation;● awareness-raising in human rights for traditional leaders;● customary systems to work more effectively with the formal system, eg in somecases the formal courts could hear appeals from the customary courts;● measures to make traditional forums more representative of the communityas a whole and to encourage participation of women in proceedings.58 Safety, security and accessible justice

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000Box 8: Improving traditional justice, Bangladesh“Shalish” is a traditional system of dispute resolution used in Bangladesh which often failsto offer fair treatment to women and other disadvantaged groups. In practice, it is a loudand passionate event which is generally open to the whole community but is largely maledominated.The treatment of women is often discriminatory.In an attempt to address this short-coming, the Madaripur Legal Aid Association isorganising village-level mediation committees on which women are represented. Funding isprovided to train women to sit on these committees. Measures are also being taken toeducate communities about domestic violence as well as to encourage women toparticipate in hearings. This type of training is being rolled out by other NGOs inBangladesh and for the first time women have a voice in community justice.MLAA reports that disputes are successfully resolved in 80% of its shalish cases.27. In some circumstances, it is necessary to go to court, but for most people, most of thetime, litigation should be the method of dispute resolution of last resort.There is alsoa range of alternatives to litigation which can be used to resolve disputes, for examplein family or commercial matters.These include:● arbitration, where the arbitrator’s decision is binding, but the process is quicker andcheaper than going to court;● mediation, in which a mediator facilitates an acceptable agreement betweenthe parties.This can also provide the basis for a more constructive relationship inthe future;● tribunals, which decide cases brought before them on a less formal basis than thecourts, free from strict rules of evidence and procedure.IV. Penal reform28. Prison conditions in most developing countries are appalling.The prison system isoften corrupt, oppressive and abusive, especially of juveniles and women. Prison staffare often unqualified and unprofessional.They are rarely exposed to human rightsprinciples. Moreover, imprisonment is generally accepted to be ineffective in reducingrepeat offending22. In most developing countries 80% of the prison population consistsof those awaiting trial, sometimes for many years.29. Sentences which put reparation before retribution, and alternatives to prosecution andprison, are more humane and cost-effective.There is an urgent need to decongestprisons and improve conditions in line with minimum international standards23.Improvements can be made by:● reviews of sentencing policy so that people are not sent to prison for minoroffences24;22“The number of prisoners we have in our jails cannot allow for any meaningful rehabilitation to take place.Thisexplains the rather high incidence of recidivism in Kenya.The current situation simply makes some criminalsactually turn into hard-core type of criminals. Short-term convicts mingle with long-term convicts learningfrom the latter how to introduce sophistication and improve on their criminal activities”: Hon. Amos Wako(Kenya’s Attorney General) addressing the symposium on Extra Mural Penal Employment held in Nairobi inDecember 1995. Quoted in Prison Conditions in Africa: Report of a Pan-African Seminar (PRI, October1997).23International standards include the UN Standard Minimum Rules for the Treatment of Prisoners 1957; the UNStandard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) 1985; UN Guidelinesfor the Prevention of Juvenile Delinquency (the Riyadh Guidelines) 1990; the UN Minimum Rules for Non-Custodial Measures (the Tokyo Rules) 1990; and the UN Rules for the Protection of Juveniles Deprived of theirLiberty 1991.2460% of the prison population of the world are serving sentences of less than one year. Source: A New Agendafor Penal Reform, International Penal Reform Conference 1999.Safety, security and accessiblee justice 59

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000●●●●the use of community service, suspended sentences, cautions etc. for less seriousoffences and decriminalisation of the most minor offences;the use of approved schools for juvenile offenders and the segregation of childrenfrom adults in prison;the use of bail for those awaiting trial;improvements in prison conditions eg through prison farms, open prisons andbetter disease control, including over the spread of TB and HIV/AIDS.Box 9: Supporting community service, ZimbabweA scheme was started in Zimbabwe in 1992 in response to a rapidly rising prisonpopulation and costs. 60% of convicted prisoners in Zimbabwe were serving sentencesof 3 months or less. A National Committee was set up which recommended the use ofcommunity service. The EU and DFID funded a pilot scheme.From inception in 1992 to June 1998 over 21,000 community service orders had beenmade on offenders who otherwise would have been sent to prison for up to one year.Offenders do practical work of benefit to the community in a social welfare organisationsuch as a school, hospital or old people’s home, or on an environmental work placement.The re-offending rate is only 6%. Costs per offender per month are $20 for communityservice against $120 for prison. The prison population, which had been rising, hasreduced from 22,000 to 18,000 in spite of rising levels of crime.The scheme has secured public approval through its visible results. The demand for“placements” now outstrips supply. The Zimbabwean government has taken on the fundingand extended the project to encompass early release of similar offenders from prison.All aspects of supervision are managed by local magistrates and allow links with thecommunity to be maintained or developed.As a result, similar schemes are now being introduced in several other African countries.Wider challenges30. The reform of law and order and justice systems is only possible if governments – andthe public at large – accept that reform is necessary and important.This will requiredebate on these issues. Such debate should be led within countries. But theinternational development community has a role to play in facilitating the dialogueand supporting civic awareness programmes, for example on penal reform.31. Another, related challenge, is the chronic under-resourcing typically experienced bythis sector. Affordable strategies to address these problems would be facilitated byeffective systems relating budgetary allocations, and donor support, to sector reforms.32. An effective judiciary requires freedom from political interference to ensureimpartiality in the delivery of judicial decisions. In some countries political patronagein judicial appointments and interference in judicial proceedings is a problem. Measuresto buttress judicial independence include: transparent criteria for the selection,promotion and removal of judges administered by an independent body; securityof tenure; and improved standards of professionalism in the judiciary.33. Another serious challenge is to root out corruption in this sector which is often worsethan in other areas. In this regard, judicial independence can also be abused in order todeter investigation and action. Corruption is a denial of justice.Where it is prevalent,the integrity and impartiality of the police and courts is compromised and the wholelegal system is brought into disrepute. Commitment by the heads of the government,the police and the judiciary is essential to combat corruption. Possible actions include:60 Safety, security and accessible justice

Appendix 1. “Justice and Poverty Reduction”, DFID issues Paper, December 2000●●●●●improving pay and conditions;strengthening the transparency and accountability of the courts and police throughcourt users committees, lay visitor schemes, etc;establishing and strengthening oversight mechanisms such as police complaintscommissions;removing responsibility for court administration from judges;strengthening capacity to investigate and prosecute offences.DFID policy and resources34. DFID is ready to consider support for programmes of reform in this sector. It is alreadysupporting the projects described in the boxes. Decisions on engagement by DFID willbe taken on a country-by-country basis, and on the basis of local commitment to takeeffective action and to pursue reform in the context of poverty eradication objectives.35. The development and implementation of DFID’s policy is led by its GovernanceDepartment and its regional and country programmes.For further information please contact:The Chief Governance Adviser,Governance Department,DFID,94 Victoria Street,London SW1E 5JL, UK.Email: r-wilson@dfid.gov.ukfax: (+44) (0) 20 7917 0074phone: (+44) (0) 20 7917 0242Safety, security and accessiblee justice 61

Appendix 2Linkages in the systemThe following diagram illustrates the process and linkages in a rape case – A is the victim and B the perpetrator. It is based ona South African model; in other jurisdictions the court structure might be different, and there could be differences of processtoo. Also this is a criminal case: civil cases would follow a different trajectory.ALaysComplaintBB arrested,charged andheldStreetCommitteeOpposebailVictimSupportNGOPolicestationPaperspassedMagistratesCourtDistrictSurgeonMedicalreportBail refused:B remandedin custodyEmotionalsupport +CourtpreparationProsecutionServiceSexualOffencesorRegional CourtLegal AidOfficePRISONGivesevidenceTRIALB Convicted:5 year sentenceProvidesdefenceAppeal(High Court)B appealsAppealrejected62 Safety, security and accessible justice

Appendix 3Checklist for appraising police reform programmes●●●●●●●●●●●●●●●What is the nature of the political control and accountability of the police?Is the police leadership de facto accountable directly to the President or Parliament?What is the nature of the relationship between the police and the military?Is there political commitment to police reform initiatives within the police?Are the police interested in institutional reform or only in acquiring material support?What is the balance between law enforcement and crime prevention?Are the police a paramilitary organisation, or are there elements of service to thegeneral public?How serious is corruption within the police, and what is their approach to corruptionin other parts of the state?What is the balance between requests from the police for support for communitypolicing and crime detection and prosecution?Are there CSOs prepared to work in partnership with the police; do they need supportto hold the state to account, provide research and help develop policy?Is the police leadership equipped and motivated to lead the organisation into a reformprocess?Is there evidence of innovative thinking at different levels in the police?What is the nature of the existing linkages and routine co-operation between thepolice and the rest of the justice sector?What proportion of the national budget is allocated to SSAJ?How do the police currently respond to issues of safety and security, especiallyfor the poor?Safety, security and accessible justice 63

Appendix 4Checklist for appraising accessible justiceInstitutional AppraisalCourts: Number, variety, jurisdiction (topical and geographical), hierarchy, funding, legalstatus, independence from political interference, probity, training.The lower courts aremost important for the poor, although an innovative and pro-poor apex court may be ableto introduce doctrinal changes that can have a profound impact on justice at all levels.Legal Profession: Number, distribution, education, organisation, capacity for deliveringservices to the poor through pro-bono work or other methods. Capacity for working onpublic interest litigation cases.Legal Assistance or Legal Aid: State and non-state provision of legal representationin key sectors: criminal defence, family law, personal injury litigation, tenancy disputes.Geographical distribution of legal aid schemes. Funding. Effectiveness. Accessibilityto the poor.Oversight of legal policy: Is there any office (in the Ministry of Justice or elsewhere)concerned with the linkages between institutions in the justice sector and the overallcoordination of legal policy?Special provision for vulnerable groups: What institutions and processes are in placeto deal with juvenile justice? Do special courts exist? What protections are in place forwomen’s rights and minority rights?Legal AppraisalLegal Materials: Are the national (and state or local, if relevant) statutes compiled andavailable for consultation in an accessible form? Are court decisions reported regularly andaccessible for use?Laws: What is the balance of statutory law and judge-made law? What are the key statutesin the areas that most affect the poor (apart from police powers and criminal procedure,look at laws relating to marriage and divorce, property, inheritance, children, wages,employment, debt, forced labour, education, and health care). Are the statutes outdated(possibly drafted under colonial rule) or have they been revised recently?Constitutional Order: Does the Constitution contain a bill of rights or a section onFundamental Rights? Do those rights accord with international human rights standards?What are the legal mechanisms for the enforcement of constitutional rights? Is the standingto sue for the enforcement of rights open to concerned citizens and NGOs or is itrestricted to parties with a direct legal interest? Does the constitution contain enforceableprovisions with respect to equal enforcement of the right to health, education, andsocial security?64 Safety, security and accessible justice

Appendix 4. Checklist for appraising accessible justiceLaw Reform: Are proposals for reform of substantive laws (eg statutes) and legalprocedures generated by university faculties, NGOs, or a Law Reform Commission?If proposals for law reform are generated, are they acted upon by the government?Appraisal of Traditional Justice SystemsGeneral: What is the number of traditional or informal justice institutions? Are theydistributed evenly around the country? What types of disputes do they deal with? Whatsorts of disputes or issues do they eschew?Knowledge of the Traditional Systems: Is the operation of the traditional systems welldescribed in the existing literature? What is known of the processing and outcomes ofcases? How are women, children, and minority groups treated by the traditionalinstitutions?Caveat: Academic descriptions of traditional justice systems have often succumbed toone of two stereotypes: either the justice they mete out is perfectly harmonious andfair, with the complete support of the community, or they are arms of local despotswhich are incapable of due process and fair outcomes. Both stereotypes aremisleading, and are best countered with solid empirical information of howreal issues involving real people are actually resolved.Sources of principles applied in traditional institutions: How are local rules andstandards determined? Is there any reference to official statutes or other state laws? Are‘customary’ rules written down or held as part of an oral tradition?Relations with state institutions:What are the different ways in which the state and non-state legal systems relate to eachother? There tend to be four modalities:●First: the state recognises the traditional systems and makes their courts and structuresan integral part of the formal system. But in doing so it tampers with the jurisdiction ofthe structures by imposing a distinction between criminal and civil cases, and reducingthe criminal jurisdiction of these structures to a meaningless minimum. Appeals can betaken up the ladder, as in Uganda, Zimbabwe, Malawi, and Kenya.●Second: The state does not recognise non-state structures and criminalises them, orat best tolerates them in an uneasy tension (South African urban informal structuresuntil 2001)●Third: the state attempts to regulate but not incorporate the informal system, excisingany criminal jurisdiction from such structures (examples: India, Indonesia, South Africaafter 2001,Western Samoa).●Fourth: the state re-invents and legislates for the creation of defunct traditional justicesystems in a new mould (examples: Gacaca tribunals in Rwanda; Panchayati Rajinstitutions in India after 1992).How do the structures and procedures of the state system need to change to make themmore accessible?Safety, security and accessible justice 65

Appendix 5Checklist for Appraising the Penal SystemThere are a number of areas which need to be considered when appraising the penalsystem, assessing the current situation and the relevance and applicability of a particularstrategy of reform in any given situation.Prison population: What is the total population per 100,000? Do desegregated figuresexist – eg: how many women, women and children, juveniles, foreign nationals, mentallyill, terminally ill?Prison conditions: a society can be judged by the way in which it keeps its prisoners –what are conditions like (use the SMR as a guide)? What does the prison diet consist of?What are medical conditions like? How many people die each year from curable diseases?What is the climate like in prison – is it one of fear? Are there any open prisons?How open is the system to outside scrutiny? To what extent are CSOs and religiousgroups allowed in? What other bodies exist (constitutional or otherwise) to inspectconditions – eg Board of Visitors, Prisons Inspectors etc?Torture and deaths in custody: are inquests held? How many escapes are there eachyear? Are leg irons or other instruments of restraint used? Are there punishment cells – egdark cells or prolonged solitary confinement?Legal oversight: in many countries magistrates and judges are required to visit prisonsregularly – to what extent is this requirement followed? Do prisoners have access to legaladvice? Are juveniles represented in court? Is there any para-legal service in action?Remand prisoners: are there any custody time limits in operation? How long has thelongest remand prisoner been held in custody? Is ‘bail’ applied by the police/courtsproperly – do the members of the community understand it? Are prisoners producedbefore the courts regularly? Are police allowed to remand prisoners directly to prison(without going through the courts)?Convicted prisoners: how many had access to legal representation at trial? Do convictedprisoners have assistance with drafting appeals? Are appeals heard regularly in the highercourts? Are prisoners legally represented at these appeals?Alternatives to prison: fines are often unaffordable to the poor person – to what extentdo alternatives exist, such as community service, victim-offender mediation, diversion ofjuveniles? Are fines paid or are offenders too poor to pay them and end up serving asentence in default?Sentencing practice: what are the powers of sentencing in the lower courts? Caninformal/traditional courts sentence persons to prison? What review mechanisms by theformal courts exist? Are they effective or rubber stamps? What would a snap survey in oneprison of sentences passed disclose? What is the percentage of prisoners serving 12 monthsor less – ie for crimes committed at the lowest end of the criminal scale?66 Safety, security and accessible justice

Appendix 5. Checklist for appraising the penal systemProductivity: is there a prison farm system producing tangible results? Is there a prisonindustry programme? Could the prison service be more self-sufficient?Staff terms and conditions of service: are they tied to the police, army, andimmigration departments? Is there a career structure?Training: what training is provided for prison officers on recruitment and in-service?Management: is it centralised or is there room for initiative by junior officers? Arebudgets set and managed by the centre, or is there any delegated authority to manage fundsat the regional/district levels? To what extent are prisoners included in the decision makingprocess (viz: conditions, human rights observance, productivity)? Are prisoners categorisedaccording to risk (ie: is there any reward mechanism for good behaviour with onwardtransfer to an institution which offers better access to training and family contact?)Complaint mechanisms: what exist within the prison system (for prisoners and staff)?What effective recourse does a prisoner have to a body outside of prison –eg: Ombudsman, Human Rights Commission or CSO?The law: how old is the primary legislation? Does it reflect contemporary realities andincorporate constitutional and international human rights norms and standards?Are Standing Orders for prison officers effective or outdated?Safety, security and accessible justice 67

Department for International DevelopmentThe Department for International Development (DFID) is the UK government department responsiblefor promoting development and the reduction of poverty. The government first elected in 1997 hasincreased its commitment to development by strengthening the department and increasing itsbudget.The central focus of the Government’s policy, set out in the 1997 White Paper on InternationalDevelopment, is a commitment to the internationally agreed target to halve the proportion of peopleliving in extreme poverty by 2015, together with the associated targets including basic health careprovision and universal access to primary education by the same date. The second White Paper onInternational Development, published in December 2000, reaffirmed this commitment, whilefocusing specifically on how to manage the process of globalisation to benefit poor people.DFID seeks to work in partnership with governments which are committed to the internationaltargets, and seeks to work with business, civil society and the research community to this end. Wealso work with multilateral institutions including the World Bank, United Nations agencies and theEuropean Community.The bulk of our assistance is concentrated on the poorest countries in Asia and sub-Saharan Africa.We are also contributing to poverty elimination and sustainable development in middle incomecountries in Latin America, the Caribbean and elsewhere. DFID is also helping the transitioncountries in central and eastern Europe to try to ensure that the process of change brings benefitsto all people and particularly to the poorest.As well as its headquarters in London and East Kilbride, DFID has offices in many developingcountries. In others, DFID works through staff based in British embassies and high commissions.DFID’s headquarters are located at:DFID1 Palace StreetLondon SW1E 5HEUKand at:DFIDAbercrombie HouseEaglesham RoadEast KilbrideGlasgow G75 8EAUKSwitchboard: 020 7023 0000 Fax: 020 7023 0016Website: www.dfid.gov.ukemail: enquiry@dfid.gov.ukPublic enquiry point: 0845 3004100From overseas: +44 1355 84 313207/02 2K Produced for DFID by Stairway CommunicationsISBN 1 86192 471 2